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ELCStruck OutPetition (Eldoret) – amended petition dated 20.03.2025 (number not stated in judgment)· [2026] KEELC 3739 (KLR)

Watindi & 3 others v Chepkorir & 7 others (Environment and Land Petition E011 of 2024) [2026] KEELC 3739 (KLR)

Environment and Land Court of Kenya
2 June 2026
4,772 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Eldoret Land Court struck out a constitutional petition that tried to re-fight a decided eviction case, confirming you must appeal, not re-litigate.

What this practically means

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Executive summary

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Before the Environment and Land Court at Eldoret were two preliminary objections: one dated 08.04.2025 by the 4th Respondent and another dated 30.04.2025 by the 1st Respondent, both seeking to strike out the Petitioners' amended petition dated 20.03.2025 concerning the demolition of structures on LR. No. Eldoret Municipality Block 12/337. The 4th Respondent argued res judicata, limitation, absence of privity, lack of locus standi of the 1st Petitioner, and that the court lacked jurisdiction as the petition sought to circumvent orders in Eldoret ELC No. 176 of 2017. The 1st Respondent argued res judicata and that the petition disclosed no constitutional issues per Anarita Karimi Njeru and Mumo Matemu. The court framed five issues and applied six tests for res judicata under Section 7 of the Civil Procedure Act. It found that a final, on-merit judgment of 29.05.2019 was delivered by a competent court in ELC No. 176 of 2017 between substantially the same parties over the same property and issues (raised in the counter-claim there), save that the 1st Petitioner, whose rights derived from her husband, was not a party. It further found the petition disclosed no breach of constitutional rights, as enforcement of a lawful judgment cannot infringe rights, and that the petition was constitutional avoidance - the proper remedy for the Petitioners aggrieved by the eviction order was an appeal, which was never filed. Both preliminary objections were allowed, the petition was struck out, and the Petitioners were ordered to pay the costs of the objections and the suit.

Key legal issues

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01

Res judicata (Section 7, Civil Procedure Act, Cap 21)

Holding

The petition is res judicata ELC No. 176 of 2017: there existed a final judgment on merit delivered on 29.05.2019 by a competent court; the parties (substantially) and the subject matter (LR. No. Eldoret Municipality Block 12/337) and the issues (rights of occupation of that property) were identical to those raised in the counter-claim in the former suit

Reasoning

The court applied six tests for res judicata: final former judgment, judgment on merit, competent jurisdiction, identical parties, same subject matter and cause of action, and same issues. It found the 29.05.2019 judgment satisfied the first three tests. Although the 1st Petitioner was not a party to the former suit, her rights were premised on her husband's ownership, making them effectively one. The suit property and occupation rights had been determined in the former suit's counter-claim.

p. 8
02

Whether the petition discloses constitutional rights violations

Holding

No identifiable infringement of the Petitioners' constitutional rights was disclosed; the 1st Petitioner had no direct ownership rights over the suit property, and enforcing a lawful judgment cannot breach rights

Reasoning

The petitioners did not identify which rights were breached. The 1st Petitioner claimed through the 2nd Petitioner, who was found to have no ownership or occupation rights over Block 12/337 per the 2019 judgment. Since the Respondents were merely enforcing that judgment, no constitutional rights could be infringed, rendering the petition baseless.

p. 9
03

Constitutional avoidance / abuse of process

Holding

The petition was an act of constitutional avoidance: the Petitioners, aggrieved by the eviction order in ELC No. 176 of 2017, which they never appealed, sought to evade it via a constitutional petition

Reasoning

The court held that a party aggrieved by the former judgment should have appealed to the Court of Appeal. The 2nd to 4th Petitioners never challenged the 29.05.2019 judgment, which remains binding. Repackaging the same dispute as a constitutional petition was an abuse of the law aimed at evading justice and could not be entertained.

p. 10

Legal principles established

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  • A litigant aggrieved by a judgment cannot re-litigate the same issues through a constitutional petition; the proper recourse is an appeal, and such a petition amounts to constitutional avoidance and abuse of process
  • Rights conferred by statute are not fundamental rights under the Bill of Rights; breach of a statute is redressed through ordinary suits, not constitutional petitions

Court orders

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  1. 1.Notice of preliminary objection dated 08.04.2025 is allowed
  2. 2.Notice of preliminary objection dated 30.04.2025 is allowed
  3. 3.The petitioners' claim vide the amended petition dated 20.03.2025 be and is hereby struck out
  4. 4.Costs of the two preliminary objections and suit to be borne by the petitioners

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Limitation of Actions ActSection 4(1)(a)
  • Civil Procedure Rules, 2010Order 21 Rule 4
  • Constitution of Kenya, 2010Articles 43(f), 53(1) & (2), 64, 22(1)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure RulesRule 10(2)

Cases cited (3)

  • Anarita Karimi Njeru vs Republic
    [1979] eKLR
  • Mumo Matemu vs Trusted Society of Human Rights Alliance and 5 Others
    CACA No. 290 of 2012 [2012] eKLR
  • Godfrey Paul Okutoyi & Others vs Habil Olaka & Another
    (2018) eKLR
Jurisdiction invoked
Original constitutional petition jurisdiction (Articles 22, 23 and 43, 53, 64 of the Constitution invoked by the Petitioners); jurisdiction contested on preliminary objection

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Watindi & 3 others v Chepkorir & 7 others (Environment and Land Petition E011 of 2024) [2026] KEELC 3739 (KLR)", Case Analysis (2026). Petition (Eldoret) – amended petition dated 20.03.2025 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3739/eng@2026-06-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.