Nelson Ochieng & 4 others (Suing on their own behalf and behalf of their Families and all the Members of the over 2000 Residents of Mukuru Kwa Njenga Residential Area) v Nairobi Metropolitan Service & 213 others; Economic and Social Rights Centre (HAKIJAMII) & 3 others (Interested Parties)

IN THE MATTER OF: ARTICLE 25 OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR), ARTICLE 11 OF THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTRAL RIGHTS (IECSR), ARTICLE 17 OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS AND ARTICLE 18 OF THE AFRICAN CHARTER OF HUMAN AND PEOPLE RIGHTS (BANJUL CHARTER) IN THE MATTER OF: THE UNREASONABLE AND UNJUSTIFIABLE DEPRIVATION OF PROPERTY THROUGH UNJUST EVICTIONS BETWEEN NELSON OCHIENG ........................................................................ 1ST PETITIONER ROSE ANYANGO ............................................................................ 2ND PETITIONER CHRISTOPHER OTIENO .............................................................. 3RD PETITIONER JOSHUA MUTHEGI ........................................................................ 4TH PETITIONER MUKURU VUMILIA COMMUNITY BASED ORGANISATION .... 5TH PETITIONER SUING ON THEIR OWN BEHALF AND BEHALF OF THEIR FAMILIES AND ALL THE MEMBERS OF THE OVER 2000 RESIDENTS OF MUKURU KWA NJENGA RESIDENTIAL AREA AND THE NAIROBI METROPOLITAN SERVICE ............................ 1ST RESPONDENT COUNTY GOVERNMENT OF NAIROBI CITY COUNTY ... 2ND RESPONDENT THE MINISTRY OF INTERIOR AND CO-ORDINATION OF NATIONAL GOVERNMENT ............................................................................ 3RD RESPONDENT KENYA URBAN ROADS AUTHORITY ................................... 4TH RESPONDENT MINISTRY OF LANDS AND PHYSICAL PLANNING ........... 5TH RESPONDENT NATIONAL LAND COMMISSION ............................................ 6TH RESPONDENT THE ATTORNEY GENERAL ...................................................... 7TH RESPONDENT ORBIT CHEMICAL INDUSTRIES LIMITED .......................... 8TH RESPONDENT DOMINIC NJUGUNA NDUNG’U ............................................. 9TH RESPONDENT EDITH VUSHA USIDE .............................................................. 10TH RESPONDENT https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18840/eng@2023-05-29 2

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MUSYOKA MATHEKA .............................................................. 11TH RESPONDENT JOSEPHAT ANGOSE INZIRIA ................................................. 12TH RESPONDENT HOSSANAH PROPHETIC & MIRACLE CHURCH .............. 13TH RESPONDENT GOSPEL FURTHERING BIBLE CHURCH ............................. 14TH RESPONDENT MULI MOM ................................................................................. 15TH RESPONDENT JOSEPHAT ANGOSE INZIRIA ................................................. 16TH RESPONDENT JOHN NJUGUNA NJOKI .......................................................... 17TH RESPONDENT ALIOW GOLO TACHE .............................................................. 18TH RESPONDENT WAMBUA MUTISYA .................................................................. 19TH RESPONDENT GLORIOUS GOSPEL CENTRE ................................................. 20TH RESPONDENT TERESIA NYAGUTHIE ONYANGO ........................................ 21ST RESPONDENT YUSUF GUYO TOLE .................................................................. 22ND RESPONDENT THOMAS OKELLO ACHOLA .................................................. 23RD RESPONDENT STEPHEN KAMUNGE WAINAINA ........................................ 24TH RESPONDENT BERNARD MUNGAI ................................................................. 25TH RESPONDENT LUCAS NYAMBEGERA NYANGWES ..................................... 26TH RESPONDENT WILSON KAMAU WAMBUGU ................................................ 27TH RESPONDENT TERESA MOKEIRA OMWOYO ............................................... 28TH RESPONDENT JOHN NJENGA WAINAINA ..................................................... 29TH RESPONDENT ELIUD WANJOGA MUCHERU ................................................ 30TH RESPONDENT FRANCI NGUGI MBURU ......................................................... 31ST RESPONDENT FRANCIS NGUGI MBURU ....................................................... 32ND RESPONDENT FRANCIS NYAGA CHABARI ................................................... 33RD RESPONDENT GEORGE KIMANI KAGIA ........................................................ 34TH RESPONDENT GERISHOM D K NJOROGE ..................................................... 35TH RESPONDENT BONIFACE MWANZIA MUINDI ............................................. 36TH RESPONDENT LEONARD NYAOKE ORIWO .................................................. 37TH RESPONDENT JOHN NJUGUNA CHEGE ......................................................... 38TH RESPONDENT VINCENT RARIEWA ................................................................ 39TH RESPONDENT JAQUELINE GITHINJI .............................................................. 40TH RESPONDENT JUSTUS KINOTI MBIJIWE ........................................................ 41ST RESPONDENT STEPHEN WAMBWA ................................................................. 42ND RESPONDENT https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18840/eng@2023-05-29 3

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RICHARD NGANVI WAMRWA .............................................. 43RD RESPONDENT EDITH NYAMBURA KAHIGA ................................................ 44TH RESPONDENT CHARLES MWANGI MAINA ................................................... 45TH RESPONDENT FRANCIS MWANGI MUGURO ............................................... 46TH RESPONDENT WILSON KAMAU WAMBUGU ................................................ 47TH RESPONDENT WILSON KAMAU WAMBUGU ................................................ 48TH RESPONDENT CELESTINE LANGAT ................................................................ 49TH RESPONDENT JACOB MUSEE MWANZIA ....................................................... 50TH RESPONDENT MARY NJERI GATHERE ........................................................... 51ST RESPONDENT PAUL MUTUI MASAKA ........................................................... 52ND RESPONDENT JACOB MUSEE MWANZIA ....................................................... 53RD RESPONDENT TABITHA NYAKINYUA GATHERE ....................................... 54TH RESPONDENT CAROLINE MUKWAMUGO WALLACE ................................ 55TH RESPONDENT JOEL LANGAT ............................................................................ 56TH RESPONDENT MUCHIRI MUGO ....................................................................... 57TH RESPONDENT PETER KIMANI WAITHAKA .................................................. 58TH RESPONDENT JOHN NJENGA WAINAINA ..................................................... 59TH RESPONDENT KISINA MUTUA ......................................................................... 60TH RESPONDENT LUCAS MBAE MUTHARA ........................................................ 61ST RESPONDENT GERISHOM D K NJOROGE ..................................................... 62ND RESPONDENT MARY WANJA NJOROGE ........................................................ 63RD RESPONDENT BENARD GITHINJI KARIMI ................................................... 64TH RESPONDENT ANDREW MAKUMI KAMUYU ............................................... 65TH RESPONDENT JOYCE WANJIRU NDIRANGU ................................................ 66TH RESPONDENT WILFRED NDIRAGU NGUGI .................................................. 67TH RESPONDENT GLADYS KAJUJU MWITE ........................................................ 68TH RESPONDENT GIDEON KYALO KIMULU ....................................................... 69TH RESPONDENT MICHAEL MBIRA NGIGI ......................................................... 70TH RESPONDENT JOSEPH KINYANJUI MWAURA .............................................. 71ST RESPONDENT ALEX NGANGA KAMAU ......................................................... 72ND RESPONDENT NANCY WANJIKU KIBE .......................................................... 73RD RESPONDENT HAFSA IBRAHIM KHALIF ....................................................... 74TH RESPONDENT https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18840/eng@2023-05-29 4

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ROSINAH NICHOLAS NGUMBI ............................................. 75TH RESPONDENT CHARLES MUNENE GATIMU ................................................ 76TH RESPONDENT BEN ABENGA NYARANGO ..................................................... 77TH RESPONDENT ATHOMI SELF HELP GROUP .................................................. 78TH RESPONDENT PETER CHERERE MUTHUI .................................................... 79TH RESPONDENT WILSON CHEGE ........................................................................ 80TH RESPONDENT DANIEL KIMUNYA MATHENGE ............................................ 81ST RESPONDENT KENNETH KAMWERE MAINA ............................................. 82ND RESPONDENT SAMUEL MAINA MURITHI .................................................... 83RD RESPONDENT STEPHEN KAMUNGE WAINAINA ........................................ 84TH RESPONDENT DANIEL GIKONYO NGORU .................................................... 85TH RESPONDENT STEPHEN KAMUNGE WAINAINA ........................................ 86TH RESPONDENT EMMA WAMBUI KARANJA .................................................... 87TH RESPONDENT NZUKI NDUNDA ....................................................................... 88TH RESPONDENT JOHN MWF,N.IA MI JR A GE .................................................. 89TH RESPONDENT JOYCE WAIRIMU NJENGA ...................................................... 90TH RESPONDENT YUSUF GUYO TOLE ................................................................... 91ST RESPONDENT JAMES WANJOHI KARIUKI .................................................... 92ND RESPONDENT JOHN NJENGA WAINAINA ..................................................... 93RD RESPONDENT HILDA MWENDE IKINGI ........................................................ 94TH RESPONDENT CHARLES ODOUR ONGONGE ............................................... 95TH RESPONDENT EUNICE MUMBI MUSAU ......................................................... 96TH RESPONDENT CATHERINE WANGUI MBOGO ............................................. 97TH RESPONDENT PETER CHEGE GITAU .............................................................. 98TH RESPONDENT DANIEL GIKONYO NGORU .................................................... 99TH RESPONDENT JOSEPH MUSAU MUYANGA ................................................. 100TH RESPONDENT JOSEPH MUSAU MUYANGA .................................................. 101ST RESPONDENT ALICE WAITHIRA MUNGAI ................................................. 102ND RESPONDENT WAPONYA CONSTRUCTION CO.LIMITED ..................... 103RD RESPONDENT MERCY MUNJIRU WAIGURU .............................................. 104TH RESPONDENT DAVID OKECHI ........................................................................ 105TH RESPONDENT DAVID OKECHI ........................................................................ 106TH RESPONDENT https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18840/eng@2023-05-29 5

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GERISHOM D K NJOROGE ................................................... 107TH RESPONDENT ALIO EDIN MOHAMED ......................................................... 108TH RESPONDENT WAPONYA CONSTRUCTION CO.LIMITED ...................... 109TH RESPONDENT DANIEL GIKONYO NGORU .................................................. 110TH RESPONDENT SIMON NGUGI KUNGU ......................................................... 111TH RESPONDENT DAVID OKECHI ........................................................................ 112TH RESPONDENT WAMBUA NGULU ................................................................... 113TH RESPONDENT ANTHONY MULI MULWA .................................................... 114TH RESPONDENT ALIOW GOLO TECHE ............................................................. 115TH RESPONDENT NICK OCHOKO OYUGI ......................................................... 116TH RESPONDENT JULIUS MULEI MAKAU .......................................................... 117TH RESPONDENT HELLENA WAMBUI MANEGENE ........................................ 118TH RESPONDENT RACHAEL MUTHONI KAMAU ............................................ 119TH RESPONDENT KHAMAR FARAH IBRAHIM ................................................ 120TH RESPONDENT DAUDI HAJI ALI ....................................................................... 121ST RESPONDENT EDWARD WAIGURU MUYA .................................................. 122ND RESPONDENT BONASHA LIMITED ............................................................... 123RD RESPONDENT ADAN ALIO IBRAHIM ........................................................... 124TH RESPONDENT CHARLES GITONGA RUGOJI .............................................. 125TH RESPONDENT TOWFIQ GENERAL TRADING LTD ................................... 126TH RESPONDENT DAVID KAMAU MUMO .......................................................... 127TH RESPONDENT ADAN HASSAN ISAAK ........................................................... 128TH RESPONDENT JULIUS MANEGENE NJERU .................................................. 129TH RESPONDENT MERCY MUNJIRU WAIGURU .............................................. 130TH RESPONDENT AHMED MOHAMED LIBAN .................................................. 131ST RESPONDENT PHIL MUSYOKI METI ............................................................ 132ND RESPONDENT HUSEIN AHMED MOHAMED ............................................... 133RD RESPONDENT THOMAS OLULO ACHOLA .................................................. 134TH RESPONDENT ELIJAH MAINA NJUGUNA .................................................... 135TH RESPONDENT JAMES WAHOME KIBICHO .................................................. 136TH RESPONDENT JACQUES KIMEU MUTHUSI ................................................. 137TH RESPONDENT EBBY MUSIMBI BEGISEN ....................................................... 138TH RESPONDENT https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18840/eng@2023-05-29 6

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MARY BWARI MOMANYI ..................................................... 139TH RESPONDENT JAMES GITAIGA ....................................................................... 140TH RESPONDENT EDWARD NJOROGE ................................................................ 141ST RESPONDENT ELIZABETH WAIRIMU KIMANI .......................................... 142ND RESPONDENT CHARLES GITONGA RUGOJI .............................................. 143RD RESPONDENT MOSES NGUGI GITHINJI ...................................................... 144TH RESPONDENT MATHEW MUTUKU ............................................................... 145TH RESPONDENT BENSON NYAGAKA MOCHERE .......................................... 146TH RESPONDENT TIMOTHY KARANJA NJOROGE ......................................... 147TH RESPONDENT CHARLES GITONGA RUGOJI .............................................. 148TH RESPONDENT FAITH WAITHERA MUTURI ................................................ 149TH RESPONDENT SAMUEL GATHECA MURIUKI ............................................. 150TH RESPONDENT EDEN ONSHOW MAMOW ..................................................... 151ST RESPONDENT JOSEPH WANYOIKE MUCHOKI .......................................... 152ND RESPONDENT JOSEPHAT ANGOSE INZIRIA ............................................... 153RD RESPONDENT MOSE KHAMATI OYATSI ...................................................... 154TH RESPONDENT STEPHEN MBE GAKURU ...................................................... 155TH RESPONDENT JOSEPH MWANZIA MUTIO .................................................. 156TH RESPONDENT ELIZABETH KATUMBI KIMEU ............................................ 157TH RESPONDENT ANJELINE AWINO WANGA .................................................. 158TH RESPONDENT TABITHA NYAKINYUA GATHERE ..................................... 159TH RESPONDENT STEPHEN KIBE GAKURU ...................................................... 160TH RESPONDENT STEPHEN NJAGI MURIITHI ................................................. 161ST RESPONDENT CHARLES MWAI MAHUTHU ............................................... 162ND RESPONDENT MARY NJERI GATHERE ........................................................ 163RD RESPONDENT JOHN NJUGUNA NJOKI ........................................................ 164TH RESPONDENT ELIZABETH KATUMBI KIMEU ............................................ 165TH RESPONDENT NATHAN NZAI MUANGI ...................................................... 166TH RESPONDENT ELIZABETH WAIRIMU KIMANI .......................................... 167TH RESPONDENT JOHN KYALO MULYUNGI .................................................... 168TH RESPONDENT JOSEPH K GITHINJI ............................................................... 169TH RESPONDENT MUSYOKA MATHEKA ........................................................... 170TH RESPONDENT https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18840/eng@2023-05-29 7

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RAPHAEL KIBIRU TUTUMA ................................................ 171ST RESPONDENT KARANJA KIHUNGU GEMA ................................................ 172ND RESPONDENT GLADYS NDUKU KIILU ......................................................... 173RD RESPONDENT ANTHONY MULI MULWA .................................................... 174TH RESPONDENT GLADYS NDUKI KIILU .......................................................... 175TH RESPONDENT ANTHONY MULI MULWA .................................................... 176TH RESPONDENT PAUL ILUVYA MUTUNGA ..................................................... 177TH RESPONDENT ANTHONY MULI MULWA .................................................... 178TH RESPONDENT ANESTINE GATAKAA JOHN ................................................ 179TH RESPONDENT PETER NJAGI NTHIGA .......................................................... 180TH RESPONDENT JULIUS KAMAU IRUNGU ...................................................... 181ST RESPONDENT STEPHEN GITAU MWAI ........................................................ 182ND RESPONDENT JAMES MUTHUMBI GICHURI ............................................. 183RD RESPONDENT JUDITH WAMBUI MUNENE ................................................. 184TH RESPONDENT AMOS MWANGI CHEGE ........................................................ 185TH RESPONDENT CAROLINE NDUTA KINYUA ............................................... 186TH RESPONDENT DAVID KINYANJUI KANYUKU ........................................... 187TH RESPONDENT MICHAEL NJOROGE KIMANI ............................................. 188TH RESPONDENT JANE WATETU GATHINJI ..................................................... 189TH RESPONDENT PETER MUIGAI WAWERU .................................................... 190TH RESPONDENT TUMAINI 25 SELF HELP GROUP ......................................... 191ST RESPONDENT TERESIA NYAGUTHIE ONYANGO ..................................... 192ND RESPONDENT BYRON KURIA MIGWE ......................................................... 193RD RESPONDENT ESTHER WAMBUI KUNGU ................................................... 194TH RESPONDENT FAITH WAMBUI GITHUI ....................................................... 195TH RESPONDENT MULI KIOKO ............................................................................ 196TH RESPONDENT JOHN PETER GATHURA ....................................................... 197TH RESPONDENT ANTHONY MWANGI MAINA .............................................. 198TH RESPONDENT REGINA MWIKALI KITAVI ................................................... 199TH RESPONDENT PETER KITHEKA KITILE ...................................................... 200TH RESPONDENT SHADRACK NJENGA WAWERU .......................................... 201ST RESPONDENT KENNETH KAMWERE MAINA ........................................... 202ND RESPONDENT https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18840/eng@2023-05-29 8

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SAMUEL MWANGI KIRAGU ................................................. 203RD RESPONDENT JOYCE CONSTANCE MWENDE KITHEKA ........................ 204TH RESPONDENT CECILIA WANGUI MUNYI .................................................... 205TH RESPONDENT KENYA RED CROSS SOCIETY .............................................. 206TH RESPONDENT THE OCS. VILLA POLICE STATTION EMBAKASI ............ 207TH RESPONDENT THE SUBCOUNTY POLICE COMMANDER EMBAKASI . 208TH RESPONDENT REGIONAL POLICE COMMANDER NAIROBI REGION 209TH RESPONDENT THE PRINCIPAL SECRETARY, STATE DEPARTMENT OF INTERIOR, MINISTRY OF INTERIOR AND CORDINATION OF NATIONAL GOVERNMENT ........................................................................ 210TH RESPONDENT LT. GEN MOHAMMED BADI ................................................. 211TH RESPONDENT LYDIA KWAMBOKA ............................................................... 212TH RESPONDENT JORAM ICARANJA ................................................................. 213TH RESPONDENT IRSHAD SUMRA ...................................................................... 214TH RESPONDENT AND ECONOMIC AND SOCIAL RIGHTS CENTRE (HAKIJAMII) .... INTERESTED PARTY KATIBA INSTITUTE .............................................................. INTERESTED PARTY LEGAL ADVICE CENTRE T/A KITUO CHA SHERIA ..... INTERESTED PARTY (PROPOSED) JANE WERU .................................................... INTERESTED PARTY RULING Background and Introduction 1. 2. Vide notice of motion application dated the October 13, 2022; the 8th respondent/applicant has approached the Honourable court seeking for the following Reliefs; i. That the Petition dated November 22, 2022; and amended on the September 5, 2022; be struck out for being Res Judicata and an abuse of court process. ii. That in view of order 1 above, this Honourable Court has no Jurisdiction to hear and determine the Petition dated November 22, 2021 and amended on September 5, 2022; and therefore downs its tools accordingly; iii. That the cost of this Petition dated November 22, 2021 and amended on the September 5, 2022 and this application be borne by the petitioners and the 1st, 2nd, 3rd and 4th interested parties. The instant application is premised and anchored on various grounds, which have been alluded to and enumerated at the foot thereof. Furthermore, the instant Application is supported by the adavit of https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18840/eng@2023-05-29 9

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one Sanchen Chandaria sworn on the October 13, 2022; and a Further adavit sworn by the said Sanchen Chandaria albeit on the January 12, 2023, respectively. 3. Pursuant to and upon being served with the subject Application the petitioners/respondents responded to the subject application vide a replying adavit sworn by the 1st petitioner/respondent on the 27th October 2022; and in respect of which the 1st petitioner/respondent has contended interalia that the instant application is merely intended to obstruct, delay and or defeat the Due process of the Honourable Court. 4. Be that as it may, the instant Application came up for hearing on the February 15, 2023; and on which date the advocates for the respective parties agreed to canvass and dispose of the application by way of written submissions. For good measure, Learned counsel for the 8th respondent/applicant proceeded to and led written submissions dated the January 12, 2023; whereas the Petitioners led written submissions dated the March 3, 2023. 5. Nevertheless, the rest of the Parties, namely, Respondents and the Interested Parties never led any written submissions. Instructively, Learned Counsel for the Petitioners, who has also been appearing for the First and second Interested Parties, titled his written submissions as Petitioners Written Submissions and not otherwise. Submissions By the Parties A.Applicant’s submissions: 6. The Applicant herein led written submissions dated the 12th January 2023 (which submissions were led earlier than the date of directions for the ling and exchange of written submissions); but which in any event have raised and highlighted two (2) salient issues for consideration by the Honourable court. 7. Firstly, Learned counsel for the Applicant has submitted that the issues raised and canvassed at the foot of the amended Petition dated the 5th September 2022, are issues which have hitherto been canvassed and ventilated before various courts of competent Jurisdictions. 8. Furthermore, Learned counsel has contended that the Petitioners herein, either by themselves or through their duly authorized Representatives have previous led and lodged various suits against, inter-alia the 8th Respondent/Applicant herein. 9. Additionally, Learned counsel has submitted that in the various suits, which have hitherto been led, the gravamen/substratum of the Petitioners’ claim has always gravitated around the question of intended Eviction of persons resident on the suit property and otherwise comprising of Mukuru Kwa Njenga Residential Area. 10. Other than the foregoing, Learned counsel for the Applicant has ventured forward and thereafter supplied the particulars of the various cases, which are said to have been led by and on behalf of the Petitioners herein and which cases are contended to espouse similar and/or substantially similar issues like the ones beforehand. 11. For good measure, Learned counsel has cited inter-alia ELC Petition Number E062 of 2018 (Mukuru Kwa Njenga Slum Residents & 13 others versus Nairobi County Government & 13 Others); Nairobi HCC Misc. JR No. 784 of 1996 (Amina Mohamed & 6 Others versus The Chief Embakasi Location & 2 Others); ELC NO. 7 of 2020 OS (Zipporah Muthoni Ndungu & 5 Others versus The National Bank of Kenya & 12 Others); Nairobi HCC No. 876 of 2004 (Orbit Chemical Indutries Limited versus The Honorable Attorney General) and Civil Appeal No. 32 of 2014 (Honorable Attorney General v Orbit Chemicals Ltd), respectively. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18840/eng@2023-05-29 10

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12. In view of the foregoing, Learned counsel for the Applicant has therefore contended that the issues at the foot of the amended Petition are therefore issues which are barred by the Doctrine of ResJudicata; insofar as same have been heard and conclusively been determined by Courts of competent Jurisdictions. 13. Arising from the foregoing, Learned counsel for the Applicant has thus submitted that on the basis of the Doctrine of Res-Judicata, this Honorable court is therefore prohibited and precluded from entertaining, adjudicating upon and/or re-engaging with the subject Dispute. 14. In support of the foregoing submissions and essentially that the issues beforehand are Res-Judicata; Learned counsel has cited and relied on various Decisions, inter-alia John Florence Maritime Ltd & Another versus The Cabinet Secretary, Transport and Infrastructure & 3 Others (2021) KESC 39 (KLR), Kenya Commercial Bank Ltd versus Muiru Coffee Estate Ltd & Another (2016)eKLR, E.T versus The Attorney General & Another (2012)eKLR and Kakaa versus Kadhis Court, Nairobi & Another; Saad Interested Party (2022)KEHC 11090 (KLR), respectively. 15. Secondly, Learned counsel for the Applicant has also contended that various issues which have been raised at the foot of the instant Petition also do not fall within the Jurisdictional mandate of the Environment and Land Court or otherwise. In this regard, Learned counsel has therefore contended that this Honorable court is therefore divested of the requisite Jurisdiction to entertain and adjudicate upon various issues, which have been highlighted and canvassed at the foot of the amended Petition. 16. To underscore the importance of Jurisdiction and the legal consequences attendant to proceedings taken without the requisite Jurisdiction, Learned counsel for the 8th respondent/applicant has cited and relied on the cases of, inter-alia, S. K Macharia & another versus Kenya Commercial Bank Ltd (2012)eKLR and Owners of Moto Vessel Lilian S versus Caltex Oil (K) Ltd (1989)eKLR, respectively. 17. Premised on the foregoing submissions, Learned counsel for the Applicant has therefore implored the Honourable court to nd and hold that the amended Petition dated the 5th September 2022; is not only barred by the Doctrine of Res-Judicata; but has also been mounted by a court without the requisite Jurisdiction/competency, to entertain and/or adjudicate upon same. 18. Consequently and in view of the foregoing, Learned counsel for the Applicant has therefore sought that the entire amended Petition/ Proceedings, ought to be struck out with costs to the Applicant herein. B.Petitioners’/ Respondents’ Submissions: 19. The Petitioners’/ Respondents’ herein led written submissions dated the 3rd March 2023; and in respect of which Learned counsel for the Respondents has raised, highlighted and canvassed one salient issue for consideration by the Honourable court. 20. For good measure, Learned counsel for the Respondents has submitted that the various suits/ proceedings which have been alluded and/or enumerated by the Applicant herein do not touch and/ or concern the issues which are canvassed and highlighted at the foot of the amended Petition herein. 21. Additionally, Learned counsel for the Respondents has submitted that all the suits and/or previous proceedings which have been enumerated by the Applicant were all led at the very latest in the year 2020 and yet the events culminating into the ling of the current Petition transpired and/or took place on or about October 2021. For coherence, Learned counsel for the Respondents has invited the Honourable court to take cognizance of the contents of paragraphs 120, 122, 123, 126, 132, 134, 136, https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18840/eng@2023-05-29 11

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138, 139, 153 and 161, of the amended Petition which highlight the fact that the oensive demolitions complained of were commenced and carried out from the 11th October 2021 henceforth. 22. Having pointed out and underscored that the impugned activities were commenced from the 11th October 2021 and not otherwise, Learned counsel for the Respondents has therefore submitted that the suits and proceedings which were led earlier than the said dates, cannot therefore be contended to raise and ventilate the same cause of action. 23. Furthermore, Learned counsel for the Respondents has submitted that prior to and before invoking and relying upon the doctrine of Res-Judicata, it is incumbent upon the Applicant to demonstrate the various ingredients that inform and underpin the Doctrine of Res-Judicata. 24. Instructively, Learned counsel for the Respondents has submitted that the Applicant herein has failed to demonstrate that indeed the cause of action which is captured at the foot of the amended Petition could have been led/lodged in court prior to and or before its accrual and/ or occurrence, in the manner pointed out in the amended Petition. 25. Nevertheless, Learned counsel has invited the Honourable court to nd and hold that the cause of action at the foot of the amended Petition, raises a separate and distinct cause of action, which has never been canvassed nor ventilated before any court of competent Jurisdiction. 26. In support of the forgoing submissions, Learned counsel for the Respondents has cited and relied on a number of decisions, inter-alia, Dock Workers Union Kenya versus Kenya Ports Authority (2021)KECA 87 (KLR); IEBC versus Maina Kiae & 5 Others (2018)eKLR; Ukay Estate Ltd & Another versus Shah Hirji Maneck Ltd & 2 Others (2006)eKLR; Greenled Investment Ltd versus Baber Alibhai Mauji (2000)eKLR and Rashi Allarakha Jan Mohamed & Company versus Jethalal Vallabhdas & Company (1956)EACA 255, respectively. 27. In view of the foregoing, Learned counsel for the Respondents has submitted that the Doctrine of Res-Judicata is therefore inapplicable to and in respect of the issues that have been highlighted and canvassed at the foot of the amended Petition. In this regard, Learned counsel has thus impressed upon the court to dismiss the Application dated the 13th October 2022. Issues For Determination 28. Having reviewed the Application herein and the Response led thereto and upon taking into consideration the written submissions led by and on behalf of the Parties; the following issues do arise and are thus worthy of determination; i. Whether the Cause of Action highlighted at the foot of the amended Petition herein, are barred by the Doctrine of Re-Judicata. ii. Whether the various Reliefs sought at the foot of the amended Petition fall within the Jurisdiction of the Environment and Land Court or otherwise. Analysis And Determination Issue Number 1.Whether The Cause Of Action Highlighted At The Foot Of The Amended Petition Herein, Are Barred By The Doctrine Of Res- Judicata. 29. The Applicant herein has led and mounted the current Application and wherein same has contended that the issues highlighted and canvassed at the foot of the amended Petition dated the 5th September 2022; are barred and/or prohibited by the Doctrine of Res-Judicata. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18840/eng@2023-05-29 12

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30. Premised on the foregoing contention, Learned counsel for the Applicant has therefore implored the Honourable court to nd and hold that the amended Petition is therefore premature, misconceived and otherwise Legally untenable. 31. Be that as it may and before venturing to consider whether or not the issues highlighted at the foot of the amended Petition dated the 5th September 2022; are barred by the Doctrine of Res-Judicata, it is imperative to take cognizance of the salient facts/ features that constitutes the cause of action before this Honorable court. 32. Consequently and in this respect, certain paragraphs of the amended Petition are relevant, important and thus worthy of reproduction. Invariably, it is imperative to reproduce the said paragraphs. 33. For ease of reference, the pertinent paragraphs are reproduced as hereunder; Paragraph 120 On or about October 2021, agents, servants, employees and or anyone acting under the instruction of the 1st and 2nd Respondents came and began marking buildings located along Catherine Ndereba Road, perhaps as a means indicating that some day in the future, there would be a Road expansion. Paragraph 122 The Respondents were aware, courtesy information received from the Deputy County Commissioner of the area that there would be a public participation session on the 21st October 2021 to discuss issues of the intended road construction. The Residents had geared up for the same with Eagerness. Paragraph 123 Unfortunately, on the 11th day of October 2021 at around 17:30 hours, whilst Kenyans celebrated Utamaduni Day (a Public holiday), the Residents of Mukuru Kwa Njenga faced their worst fears. The infamous Sanny caterpillar Bulldozers were brought into the neighborhood anked by a number of police ocers in over 10 police vehicles drawn from various police stations around Nairobi County and the environs. Paragraph 124 The Residents whose houses and business were marked were given 30 minutes to vacate the premises. Upon protest and demand for a written order of eviction and demolition, the residents were met with stern looking Police Ocers wielding weapons. Paragraph 125 Demolition then begun shortly afterwards without giving heed to the Human Dignity or the property worth millions which was being demolition. Paragraph 132 Through out the month of November 2021, the Evictions in Mukuru Kwa Njenga progressed without any regard to Human dignity in spite of a wide media coverage and calls from Civil Societies to have the Evictions stopped. Paragraph 136 However, around December 25th, 26th and 27th of November 2021; the 1st, 2nd, 7th to the 207th Respondents through their agents invaded the said Parcels of land with the intention https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18840/eng@2023-05-29 13

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of installing Beacons to the said Land notwithstanding the existence of a valid court order preventing them from doing so. Paragraph 139 As the new year came to fruition, the President ordered a stop to the Evictions and vide a press release dated January 14th 2022; titled Government strikes deal with Mukuru Land Owner; this was testament of the existing good will of the Government to resolve this unending Mukuru Land Dispute. Paragraph 153 Further, the Petitioners were not consulted prior to the demolitions on the 11th October 2021; despite there being a Notice from the Deputy County Commissioner of a planned public participation on the 21st October 2021. Certainly, this contravened Article 10 of the Constitution of Kenya and all other enabling laws detailing the need of public participation. Paragraph 161 Indeed, the Petitioners assert that Article 19 read together with Article 20 of the Constitution 2010; requires that any policy or action undertaken by the Respondent be guided and within the Bill of Rights framework. The Petitioners assert the failure to issue a notice as well as the failure to provide an alternative area of settlement prior to the evictions on the 20th October 2021; was a gross violation of the Constitution, 2010. 34. From the contents of the paragraphs which have been enumerated herein before, what is evident and apparent is that the Evictions and demolitions that are complained of are the ones that were commenced and thereafter undertaken (sic) by the Respondents with eect from the 11th October 2021 henceforth. 35. It is the impugned evictions and demolitions that are contended to have breached, violated and or infringed upon the human rights and fundamental freedoms of (sic) the Petitioners herein. 36. Having taken cognizance of the foregoing observations, it is now appropriate to revert back and to consider whether the circumstances which took place from the 11th October 2021 and the subsequent days thereafter; could have been prosecuted and or ventilated before any court of competent Jurisdiction in the year 2020 or therebefore. 37. Evidently, the substratum of the current Application is that the issues being raised by the Petitioners herein were canvassed and ventilated before various courts in terms of the suits, whose details were availed and highlighted elsewhere herein before. 38. However, I beg to point out that the suits which the Applicant has highlighted and alluded to found and underpin the basis for raising the ground of Res-Judicata, relates to events that preceded the cause of action being ventilated at the foot of the current Petition. 39. Clearly and to my mind, there is no way that the Evictions and (sic) oensive demolitions that were undertaken on the 11th October 2021, could have prophetically been litigated in the years 1996, 2014, 2014, 2018 and 2020, respectively; given that the suits alluded to were led in the named years. 40. To my mind, the Applicant herein was endeavoring to stretch the import and tenor of the Doctrine of Res-Judicata beyond the known and conceivable limits. Nevertheless, it is appropriate to point out that the Doctrine of Res-Judicata does not prohibit and/or preclude a cause of action that would arise in future. Further and in addition, neither could the Petitioners herein have conceived of what was https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18840/eng@2023-05-29 14

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going to happen in the year 2021; so as the le a suit, if at all, in that regard, earlier that the occurrence of the acts complained of. 41. Having addressed the foregoing features, it is imperative to now underscore that prior to and or before invoking the Doctrine of Res-Judicata, it behooves the Applicant to established and demonstrate that the various ingredients espoused in Section 7 of the Civil Procedure Act, are discernable and evident. Nevertheless, in this case, the Applicant has failed to justify the existence of the known ingredients. 42. Be that as it may, the Doctrine of Res-Judicata was duly highlighted and succinctly elaborated upon by the Supreme Court of Kenya in the case of John Florence Maritime Services Limited & another versus Cabinet Secretary Transport & Infrastructure & 3 others (Petition 17 of 2015) [2021] KESC 39 (KLR) (Civ) (6 August 2021) (Judgment), where the court stated and held thus; 58. This court in the case of Kenya Commercial Bank Limited v Muiri Coee Estate Limited & anotherMotion No 42 of 2014 [2016] eKLR (Muiri Coee case) held as follows regarding the doctrine of res judicata: 52 Res judicata is a doctrine of substantive law, its essence being that once the legal rights of parties have been judicially determined, such edict stands as a conclusive statement as to those rights. It would appear that the doctrine of res judicata is to apply in respect of matters of all categories, including issues of constitutional rights. Such a perception has a basis in comparative Jurisprudence; in the Ugandan case of Hon Norbert Mao v Attorney-General, Constitutional Petition No 9 of 2002; [2003] UGCC3, the petitioner brought an action on behalf of 21 persons from his constituency, for declarations under article 137 of the Uganda Constitution, and for redress under article 50 of that Constitution. The matter arose from an incident in which ocers of the Uganda Peoples Defence Forces attacked a prison, and abducted 20 prisoners, killing one of them. Unknown to the petitioner, another action had already been led under article 50, seeking similar relief; and Judgment had been given in Hon Ronald Reagan Okumu v Attorney-General, Misc Application No0063 of 2002, High Court HCT 02 CV MA 063 of 2002. The Constitutional Court dismissed the petition, on a plea of res judicata, declining the petitioner’s pleas that certain important constitutional declarations now sought, had not been accommodated in the earlier Judgment. 53. In Silas Make Otuke v Attorney-General & 3 others, [2014] eKLR, the High Court of Kenya agreed with the Privy Council decision in Thomas v The AG of Trinidad and Tobago (1991) LRC (Const) 1001, in which the Board was “satised that the existence of a constitutional remedy as that upon which the appellant relies does not aect the application of the principle of res judicata”. 54. The doctrine of res judicata, in eect, allows a litigant only one bite at the cherry. It prevents a litigant, or persons claiming under the same title, from returning to court to claim further reliefs not claimed in the earlier action. It is a doctrine that serves the cause of order and ecacy in the adjudication process. The doctrine prevents a multiplicity of https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18840/eng@2023-05-29 15

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suits, which would ordinarily clog the courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively. 55. It emerges that, contrary to the respondent’s argument that this principle is not to stand as a technicality limiting the scope for substantial justice, the relevance of res judicata is not aected by the substantial-justice principle of article 159 of the Constitution, intended to override technicalities of procedure. Res judicata entails more than procedural technicality, and lies on the plane of a substantive legal concept.56.The learned authors of Mulla, Code of Civil Procedure, 18th Ed 2012 have observed that the principle of res judicata, as a judicial device on the nality of court decisions, is subject only to the special scenarios of fraud, mistake or lack of jurisdiction (p 293):The principle of nality or res judicata is a matter of public policy and is one of the pillars on which a judicial system is founded. Once a Judgment becomes conclusive, the matters in issue covered thereby cannot be reopened unless fraud or mistake or lack of jurisdiction is cited to challenge it directly at a later stage. The principle is rooted to the rationale that issues decided may not be reopened and has little to do with the merit of the decision.” 57. The essence of the res judicata doctrine is further explicated by Wigram, V-C in Henderson v Henderson (1843) 67 ER 313, as follows:… where a given matter becomes the subject of litigation in, and adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward, as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a Judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time” [emphasis supplied]. 58. Hence, whenever the question of res judicata is raised, a court will look at the decision claimed to have settled the issues in question; the entire pleadings and record of that previous case; and the instant case¾to ascertain the issues determined in the previous case, and whether these are the same in the subsequent case. The court should ascertain whether the parties are the same, or are litigating under the same title; and whether the previous case was determined by a court of competent jurisdiction. This test is summarized in Bernard Mugo Ndegwa v https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18840/eng@2023-05-29 16

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James Nderitu Githae & 2 others, (2010) eKLR, under ve distinct heads: 59. 59. (i) the matter in issue is identical in both suits; (ii) the parties in the suit are the same; (iii) sameness of the title/claim; (iv) concurrence of jurisdiction; and (v) nality of the previous decision. That courts have to be vigilant against the drafting of pleadings in such manner as to obviate the res judicata principle was judicially remarked in ET v Attorney-General & another, (2012) eKLR, thus:The courts must always be vigilant to guard litigants evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the court. The test is whether the plainti in the second suit is trying to bring before the court in another way and in a form of a new cause of action which has been resolved by a court of competent jurisdiction. In the case of Omondi v National Bank of Kenya Limited and others, (2001) EA 177 the court held that, ‘parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit.’ In that case the court quoted Kuloba J, in the case of Njangu v Wambugu and another Nairobi HCCC No 2340 of 1991 (unreported) where he stated, ‘If parties were allowed to go on litigating forever over the same issue with the same opponent before courts of competent jurisdiction merely because he gives his case some cosmetic face-lift on every occasion he comes to court, then I do not see the use of the doctrine of res judicata…..” For res judicata to be invoked in a civil matter the following elements must be demonstrated:a)There is a former Judgment or order which was nal;b)The Judgment or order was on merit;c)The Judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; andd)There must be between the rst and the second action identical parties, subject matter and cause of action.(See Uhuru Highway Developers Limited v Central Bank of Kenya & others [1999] eKLR and See the decision of the Court of Appeal in Nicholas Njeru v Attorney General & 8 others Civil Appeal 110 of 2011 (2013) eKLR) 43. Having reviewed the pleadings in respect of the various suits, which were cited and referred to by the Applicant herein and upon juxtaposing same as against the cause of action highlighted and canvassed at the foot of the amended Petition; I come to the inevitable and inescapable conclusion that the Doctrine of Res-Judicata it is not only irrelevant but also inapplicable to the obtaining circumstances. 44. In a nutshell, the limb of the instant Application propagating the claim of Res-Judicata is therefore dismissed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18840/eng@2023-05-29 17

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Issue Number 2. Whether The Various Reliefs Sought At The Foot Of The Amended Petition Fall Within The Jurisdiction Of The Environment And Land Court Or Otherwise. 45. Other than the question of Res-Judicata, there is an aspect of the amended Petition that touches on certain claims/reliefs, which are worthy of consideration so as to determine whether same falls within the scope and Jurisdictional limit of the Environment and Land Court. 46. Nevertheless, before venturing to consider the Jurisdictional question, it is imperative to reproduce certain reliefs which are critical in determining whether or not same fall within the purview of the Environment and Land Court, as established vide the Provisions of Article 162(2)(b) of the Constitution, 2010. 47. For ease of reference, prayer (a) states as hereunder; a. A declaration that the actual and intended construction and improvement of roads within Mukuru Kwa Njenga Area along Catherine Ndereba Road and within the special planning area established pursuant to gazette notice number 3433 of 2020 (volume CXXII-No. 84) is unlawful and contravened Articles 10, 26, 27, 28, 32, 40, 43, 47, 53, 54, 55, 56 and 67 of the Constitution and Section 152(c), (f) and (g) of the Land Act 2012; and Regulation 63, 66, 67 and 70 of The Land Regulations (Legal Notice No. 280 of 2017). Prayer A declaration that the 1st and 2nd Respondents have violated Article 232 of the Constitution and c. Sections 3 and 5(2) of the Public Service (Values & Principles) Act. Prayer A declaration that the 1st Respondent through their agents, servants, employees and/or any one f. acting under their instruction violated the Petitioners rights under the Constitution specically; Article 28- dignity, 29 – freedom and security of the person, 32 – freedom of religion, 40 – property, 43 – the right to accessible and adequate housing and the right to education, 47 – the right to fair administrative process, 53 – the right of the child, 54 – the rights of persons with disability, 57 – the rights of older members of the society. Prayer General damages at a quantum assessed by the court in compensation for the violation of the g. Petitioners fundamental freedoms under articles 26, 28, 29, 43, 47, 54, 55, 56 and 57 of the Constitution and as a result of the forced evictions that led to the destruction of their properties Prayer An order that the 3rd Respondent monitors the compliance of the declarations and orders j. issued by this court in this cause and promptly bring to the attention of this court or any court of competent jurisdiction any noncompliance by the Respondents or any one else with the declarations and orders of this court 48. My understanding of the reliefs which have been highlighted in the preceding paragraphs drives me to the conclusion that same falls within the jurisdictional mandate of the High Court pursuant to and by dint of article 165(3) of the Constitution, 2010; and not the Environment and Land Court. For good measure, the Articles of the Constitution which have been cited and highlighted in the body of the reliefs pointed out are substantially outside the mandate of this Honorable court. 49. Instructively, there is no gainsaying that courts derive Jurisdiction directly from the Constitution or statute or both. In this respect, if the Environment and Land Court had the requisite Jurisdiction to entertain and adjudicate upon the highlighted reliefs then same would have been expressly stipulated and provided for. Further and in addition, it is common ground that a court of law can neither expand nor enhance its Jurisdiction, by way of innovation or otherwise. Invariably, a court of law must operate within the Jurisdictional strictures provided for and illuminated by the constitutive Charter. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18840/eng@2023-05-29 18

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50. To underscore the importance of Jurisdiction, it is appropriate to reiterate the succinct and elaborate exposition of the law by the Supreme court of Kenya Samuel K Macharia & Another versus Kenya Commercial Bank Ltd & Another (eKLR), where the court stated and held thus; (68) A Court’s jurisdiction ows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the rst and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope dened by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law. 51. Additionally, it is also imperative to underscore that where a court is divested of Jurisdiction then the court must not undertake any further proceedings over and in respect of the impugned matter. For good measure, any proceedings taken by a court without Jurisdiction are a nullity and amounts to nothing. 52. In this respect, it is instructive to highlight and underscore the ratio decidendi in the case of Phoenix of E.A. Assurance Company Limited versus S. M. Thiga t/a Newspaper Service [2019] eKLR, where the court succinctly held thus; 1. At the heart of this appeal is the issue of jurisdiction. It is a truism jurisdiction is everything and is what gives a court or a tribunal the power, authority and legitimacy to entertain any matter before it. What is jurisdiction? 2. In common English parlance, ‘Jurisdiction’ denotes the authority or power to hear and determine judicial disputes, or to even take cognizance of the same. This denition clearly shows that before a court can be seized of a matter, it must satisfy itself that it has authority to hear it and make a determination. If a court therefore proceeds to hear a dispute without jurisdiction, then the result will be a nullity ab initio and any determination made by such court will be amenable to being set aside ex debito justitiae. It is for this reason that this Court has to deal with this appeal rst as the result directly impacts Civil Appeal No.6 of 2018 which is related to this one. We shall advert to this issue later. In the meantime, it is important to put this appeal in context. 53. Duly nourished by the succinct exposition of the law, I come to the conclusion that this Honorable court is devoid and bereft of Jurisdiction to engage with prayers (a), (c), (f), (g) and (j) of the amended Petition dated the 5th September 2022. Consequently and in this regard, the said prayers be and are hereby struck out. 54. To the contrary, the only prayers that shall remain alive for purposes of ventilation before this Honorable court shall be prayers (b), (d), (e), (h), (i) and (k), respectively. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18840/eng@2023-05-29 19

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Final Disposition 55. Having reviewed the two issues which were enumerated in the body of the Ruling and upon consideration of the various provisions of the Constitution; it is evident that the Application dated 13th October 2022; is partially meritorious. 56. Consequently and in the premises, the Application under reference is hereby allowed to the extent that prayers (a), (c), (f), (g) and (j) of the amended Petition dated the 5th September 2022 be and are hereby struck out. However and for completeness, the limb of the Application touching on the Doctrine ResJudicata is hereby dismissed. 57. Given the nature of suits/proceedings before the Honourable court, I direct that costs of the Application shall abide the outcome of the Petition. 58. It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 29TH DAY OF MAY 2023. OGUTTU MBOYA JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18840/eng@2023-05-29 20

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