Superclean Shine Enterprise Limited & 3 others v Kenya Railways Corporation & 4 others (Environment and Land Petition E005 of 2026) [2026] KEELC 4332 (KLR)
The bottom line
#The Environment and Land Court struck out a constitutional petition over Nairobi land because the same dispute was already before a Magistrates' Court.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Petition and Applications offend the mandatory provisions of Section 87(a) of the Kenya Railways Corporation Act
- 2.Whether the Petition and Applications contravene the doctrine of res sub judice
- 3.Whether the Applicants have established their plea for the grant of conservatory orders
Key legal issues
#Effect of non-compliance with Section 87(a) Kenya Railways Corporation Act statutory notice
Non-compliance is not fatal; the notice requirement must yield to Article 48 access to justice
The court followed Court of Appeal authority in Joseph Nyamamba adopting Kenya Bus Services, where Majanja J held that mandatory enforcement of notice requirements under Section 13A GPA violates Article 48, and this court's own decision in Catherine Njeri Majani holding failure to issue thirty days' notice is not fatal to the suit.
Whether the Petition and Motions offend the doctrine of res sub judice
They do; the substantially same controversy is pending before the Magistrates' Court in CM ELC No. E1155 of 2025
CM ELC No. 1153 of 2019 stands dismissed by operation of Order 17 Rule 2(5), but CM ELC E1155 of 2025 remains pending, instituted by the 1st Petitioner herself over the same property, lease and possession dispute. The constitutional framing does not change the substance; parallel adjudication risks conflicting orders, abuse of process and forum-shopping.
Whether the Applicants were entitled to conservatory orders
The plea failed because the Motions were struck out on sub judice grounds before the merits were reached
Having found the Motions caught by Section 6 of the Civil Procedure Act, the court struck them out and vacated interim orders rather than evaluate the prima facie case, irreparable harm and public interest thresholds argued by the Applicants.
Whether the prior plea of res judicata based on the 26th February 2026 ruling barred the sub judice objection
No; the court had earlier declined to pronounce itself substantively, so no final adjudication existed to ground res judicata
The court noted that in the earlier ruling it had not undertaken the comparative inquiry under Section 6 because the pleadings in the alleged earlier suits had not been placed before it. There was therefore no final determination capable of founding a res judicata plea.
Legal principles established
#- Failure to issue the statutory notice under Section 87(a) of the Kenya Railways Corporation Act is not fatal to a suit alleging constitutional violations, having regard to Article 48 access to justice
- A suit in which no step has been taken for two years stands dismissed by operation of law under Order 17 Rule 2(5) of the Civil Procedure Rules without a formal dismissal order
- A constitutional Petition whose practical effect is to resolve issues already pending in ordinary civil proceedings offends Section 6 of the Civil Procedure Act and must be stayed or struck out
Court orders
#- 1.The Notices of Motion dated 19th January, 2026 and 10th March, 2026 struck out with costs
- 2.The interim orders of injunction granted by this court vacated
- 3.Save for the pending contempt proceedings against the Respondents, the present Petition stayed pending the hearing and determination of Milimani CM ELC No. E1155 of 2025, or withdrawal of the said suit by the 1st Petitioner
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 22, 23(3), 40 and 47 of the Constitution; Section 13 of the Environment and Land Court Act
Relief refused
#Conservatory orders restraining eviction, demolition, construction and dealings with the suit property
Struck out as the Motions offend the sub judice doctrine, the reliefs mirroring those pending before the Magistrates' Court
Leave to file further affidavits and evidence in support of the compensatory claim
Fell with the struck-out Motion dated 19th January, 2026
Access to the suit property to salvage, secure and document machinery and equipment
Sought in the Motion dated 10th March, 2026 which was struck out
Costs
The Notices of Motion dated 19th January, 2026 and 10th March, 2026 be and are hereby struck out with costs (costs to the Respondents).
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Ultimately the court finds that the failure to issue such a notice does not render the Petition and Motions fatal.
this court is prepared to find that CM ELC No. 1153 of 2019 stands dismissed by operation of Order 17 Rule 2(5) of the Civil Procedure Rules and is therefore not a pending suit for purposes of Section 6 of the Civil Procedure Rules.
That is precisely the mischief which the doctrine of sub judice seeks to avert.
The Notices of Motion dated 19th January, 2026 and 10th March, 2026 be and are hereby struck out with costs.
The interim orders of injunction granted by this court are hereby vacated.
Save for the pending contempt proceedings against the Respondents, the present Petition is stayed pending the hearing and determination of Milimani CM ELC No. E1155 of 2025
Issues in the judgment
#Substantial typographical/garbled passages throughout the judgment (apparent OCR corruption), e.g.
Inconsistent case number references for the same Magistrates' suit - cited variously as MCELC/E1155/2025, CM ELC No. E1155 of 2025 and 'MC ELC No. E1153 of 2025' in one passage
Framing of first issue truncated/typographical in the issues list
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Superclean Shine Enterprise Limited & 3 others v Kenya Railways Corporation & 4 others (Environment and Land Petition E005 of 2026) [2026] KEELC 4332 (KLR)", Case Analysis (2026). Petition and Notices of Motion dated 19th January, 2026 and 10th March, 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4332/eng@2026-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.