Francis Kariuki & another v Kenya Railways Corporation & another

a) That this Honourable Court be pleased to strike out the Petition dated 3rd February 2023 in liminine. b) That the costs of this application and the suit be borne by the Petitioners. 2. The application is premised on grounds on its face and on the supporting affidavit sworn by Engineer John Ireri Maina, the 1st Respondent’s Planning, Design and Environment Manager. He avers that the Petition is incompetent as it offends the doctrine of res judicata since the subject matter has been tried and determined on its merit vide a judgement dated 1st July 2025, issued in ELC EP PET NO. E028 of 2024: Samora Sikalieh (Being Chairman of and suing in public interest and on behalf of the members of Karen Lang’ata District Association) v Kenya Railways Corporation & 5 others, hereinafter referred to as ‘the former suit’. Further, that the Petitioners are guilty of material non-disclosure, having ELC L PETITION NO. E017 OF 2025 Page 2 of 21 failed to disclose Ruling the

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existence of the said suit to the Court yet they were parties in the said suit. Response 3. The application is opposed by the Petitioners vide the replying affidavit sworn by Jonathan Swai, member and Chairman of Karen Ngong View Estate Association (KNVEA). He avers that the suit is not res judicata as the parties as well as the cause of action herein are distinct from those of the former suit. He alleges that the instant Petition challenges compulsory acquisition of the parcels of land cited and listed in Gazettte Notice No. 16243 dated 20 th November 2024 and published in the Kenya Gazette on 6 th December 2024, and the consequent threatened displacement of the registered owners of the said parcels of land for construction of the proposed Riruta-Ngong Meter Gauge Railway commuter line without prior public participation and stakeholder engagement of the said affected persons in ELC L PETITION NO. E017 OF 2025 Page 3 of 21 Ruling

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violation and threatened violation of the Constitution and their fundamental rights and freedoms cited in the Petition. 4. Further, that the former suit is a claim against the 1 st Respondent for commencing and undertaking construction of the said project without prior acquisition of Environmental Impact Assessment (EIA) License in violation and threatened violation of the right to a clean and healthy environment contrary to Section 3 (3) and 58 of the Environment Management and Coordination Act as read together with Articles 42, 69 and 70 of the Constitution. 5. He explains that the cause of action herein arose on 6 th December 2024 when the impugned Gazette Notice was published by the 2nd Respondent subsequent to the filing of the former suit, thus the suit cannot be said to be res judicata. Further, that the issues raised herein affect numerous members of Karen Ngong View Estate Association and businesses who were not parties to the former suit and in any case, the Court in its judgement in the former suit at ELC L PETITION NO. E017 OF 2025 Page 4 of 21 Ruling

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paragraph 106, welcomed persons who were not parties in the said suit to challenge the subject project if it threatened or violated their right to property and other fundamental rights as well as the Constitution. He contends that the said judgement was not a Decree in rem and cannot been enforced against non-parties. He argues that the application is contrary to public policy, the right to access justice and the overriding objective and that it is a second bite at the cherry and amounts to installment litigation. He points out that the application was filed after the 1st Respondent’s preliminary objection was dismissed in the matter. 6. The 2nd Respondent did not file a response. 7. The application was canvassed by way of written submissions. Submissions 8. The 1st Respondent submits that the suit is res judicata, as all facets of Section 7 of the Civil Procedure Act, having ELC L PETITION NO. E017 OF 2025 Page 5 of 21 Ruling

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allegedly been met. It points out that the subject matter herein was directly and substantially in issue in the former suit which was between the same parties. He points out that in the former suit, the Petitioners describe themselves as suing in public interest and on behalf of the residents of Karen area while in the instant Petition, they describe themselves as suing on behalf of residents of Karen area. It also points out that the former suit was heard on merit and judgement was rendered on 1st July 2025. It argues that in addition to res judicata, the suit also constitutes a gross abuse of judicial process as a litigant has no right to pursue two processes, which have the same effect. 9. To buttress its averments, the 1 st Respondent relied on the following decisions: John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others [2021] eKLR; The Independent Electoral and Boundaries Commission v Maina Kiai & 5 others [2017] eKLR; Mburu Kinyua v ELC L PETITION NO. E017 OF 2025 Page 6 of 21 Ruling

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Gachini Tutu [1979] KLR 69 and Satya Bhama Gandi v Director of Public Prosecutions & 3 others [2018] KEHC 6100 (KLR). 10. On their part, the Petitioners submit that the instant Petition raises substantive constitutional violations, including but not limited to the infringement of their rights to property, fair administrative action, and public participation as enshrined under Articles 40, 47 and 10 of the Constitution. Further, that the application fails as the 1st Respondent has not satisfied all the elements of res judicata. They insist that the subject matter herein is not similar to the former suit, as the challenge on compulsory acquisition was not an issue for determination thus the issues in this suit have neither been heard nor determined with finality in the former suit. 11. They also submit that parties in the former suit and in the instant suit are different and argue that in instances where parties are similar but issues raised are not directly and substantially in issue with the former suit, the Court has on ELC L PETITION NO. E017 OF 2025 Page 7 of 21 Ruling

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previous occasions declined to declare the matter as res judicata. They insist that the cause of action herein arose in November 2024 when the Gazette Notice was published and contend that matter was first lodged in the Environment and Planning Division of the Court and subsequently by an Order of Lady Justice Anne Omollo of 5 th March 2025, it was transferred to the Land Division, the learned Judge having satisfied herself that the suit was not similar to the former suit. He also points out that the 1 st Respondent raised a plea of sub judice in this matter and by a Ruling dated 19 th May 2025, the Court dismissed it and found that the Petition raises constitutional issues. 12. On a without prejudice basis, they submit that they have demonstrated exceptions to the applicability of res-judicata, being that there exists real imminent risk of substantial injustice should the Court decline to hear the Petition, as the impugned compulsory acquisition process threatens displacement of registered proprietors of the affected parcels ELC L PETITION NO. E017 OF 2025 Page 8 of 21 Ruling

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of land for the construction of the said project. Further, that in its Judgement in the former suit, the Court preserved the right of affected persons to move the Court during the entire period of construction of the said project in the event of noncompliance with mitigation measures or the occurrence of harm having in mind that the project is of a continuing nature and that subsequent violations constitute fresh and actionable causes of action deserving judicial interrogation. 13. To buttress their averments, the Petitioners relied on the decisions of Muriuki & 6 others v Njagi [2025] KEELC 2615 (KLR), and Ndungu & another v Njuguna & another [2023] KEELC 19104(KLR). Analysis and Determination 14. I have considered the instant Notice of Motion application, respective affidavits including rivalling submissions and the only issue for determination is whether the Petition should be struck out on the basis that it is res judicata Milimani ELC EP Petition No. E028 of 2024. ELC L PETITION NO. E017 OF 2025 Page 9 of 21 Ruling

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15. The 1st Respondent contends that this suit is res judicata Milimani ELC EP Petition No. E028 of 2024, which was heard and determined. The Petitioners insist that the parties herein, subject matter, cause of action and reliefs sought are materially different, distinct and separate from those in the former suit. 16. Res judicata is anchored on Section 7 of the Civil Procedure Act which provides that: “No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.” ELC L PETITION NO. E017 OF 2025 Page 10 of 21 Ruling

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17. The Supreme Court stated as follows in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] KESC 53 (KLR): “(317) The concept of res judicata operates to prevent causes of action, or issues from being relitigated once they have been determined on the merits. It encompasses limits upon both issues and claims, and the issues that may be raised in subsequent proceedings….There are conditions to the application of the doctrine of res judicata: i. the issue in the first suit must have been decided by a competent Court; (ii) the matter in dispute in the former suit between the parties must be directly or substantially in dispute between the parties in the suit where the doctrine is pleaded as a bar; and (iii) the parties in the former suit should be the same parties, or parties under whom they or any of them claim, litigating under the same title...” 18. The same court stated as follows in Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others [2015] eKLR: ELC L PETITION NO. E017 OF 2025 Page 11 of 21 Ruling

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“59. 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 final; 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; and d. There must be between the first and the second action identical parties, subject matter and cause of action.” 19. The Petitioners, on a without prejudice basis, pleaded that they have demonstrated exceptions to the applicability of resjudicata. 20. For the avoidance of doubt, I wish to reproduce the prayers that the Petitioners sought for in ELC EP PET NO. E028 of 2024: i. A declaration Respondents do hereby undertaking issue of that the financing and construction of the proposed Ngong - Riruta Meter Gauge Railway Commuter Railway Line passing through Riruta-Karen-Bulbul-Ngong in ELC L PETITION NO. E017 OF 2025 Page 12 of 21 Ruling

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Kajiado and Nairobi County without prior public participation of the Petitioners and or compliance with legislative measures in EMCA and provisions of Articles 10, 42, 69, 153, 201 and 232 of the Constitution is illegal, unlawful, unconstitutional, null and void. ii. An order of Permanent Injunction do hereby issue against the Respondents whether by themselves, their agents and servants or any one acting under their instructions to prevent, stop, discontinue or restrain the said Respondent and or anyone claiming under them from proceeding with, carrying out, financing or undertaking the construction of the proposed Ngong -Riruta Meter Gauge Railway Commuter Railway Line passing through Riruta Karen-Bulbul-Ngong in Kajiado and Nairobi County without prior compliance with public participation and other legislative measures under Articles 10, 42,69, 153, 201 and 232 of the Constitution of Kenya. iii. A prerogative Order of Certiorari be and is hereby issued to call, remove, deliver up to this Honourable Court and quash or revoke any ELC L PETITION NO. E017 OF 2025 Page 13 of 21 Ruling

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decisions by the 1st, 4th, 5th and 6th Respondents and contracts between the 1st, 2nd Respondents for financing, and 3rd construction, undertaking and progress of works in respect of the proposed Ngong –Riruta Meter Gauge Railway Commuter Railway Line passing through Riruta-Karen-Bulbul-Ngong in Kajiado and Nairobi County without prior public participation of the Petitioners and or compliance with legislative measures in EMCA and provisions of Articles 10, 42, 69, 153, 201 and 232 of the Constitution of Kenya. iv. An order of Mandamus directed on the 1 st, 4th, 5th and 6th Respondents whether by themselves or anyone acting under them compelling them to review policy decisions relating to transport and infrastructure as well as allocation and utilization of public funds towards improvement of transport and infrastructure of Riruta-KarenBulbul Ngong in Kajiado and Nairobi County from the said proposed Ngong-Riruta Meter Gauge Railway Commuter Railway Line to improvement and expansion of Ngong Karen Road and the existing feeder and connecting roads in the said Riruta-Karen Bulbul-Ngong in ELC L PETITION NO. E017 OF 2025 Page 14 of 21 Ruling

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Kajiado and Nairobi County or less cost effective and environmentally sound project in compliance with Articles 10, 42, 69, 153, 201 and 18 232 of the Constitution of Kenya through inter-alia public participation of the Petitioners and other affected members of the Republic of Kenya. v. Costs of the Petition. vi. Any other relief that the Court may deem fit to grant in the circumstances of the Petition. 21. I will further reproduce the prayers the Petitioners have sought for in the instant Petition E017 of 2025: i. A declaration be and is hereby issued that launching, financing and undertaking construction of Riruta-Karen-Bulbul-Ngong MGR Commuter Rail by the Respondents prior to the conducting of an Environmental Impact Assessment and the issuance of the National Environmental Management License contrary to Article 42 and 69, of the Constitution unlawful, unconstitutional, null and void. ELC L PETITION NO. E017 OF 2025 Page 15 of 21 Ruling is

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ii. A declaration be and is hereby issued that the conduct of the public participation without providing adequate and complete information including of the land proposed to be acquired by the Respondents and potential human settlement displacement as well as forest encroachment in Ngong Road Forest or without allowing the stakeholders prior opportunity to reasonably interrogate the project proposals infringes on the Petitioners rights to information and fair administrative action as provided under Article 10, 35, and 47 of the Constitution and thus is unconstitutional ,illegal and unlawful. iii. A declaration that for any project that the Respondents would like to undertake that involves displacement of persons and business or compulsory acquisition of land must not be undertaken prior to public participation of the affected persons or land owners and preliminary design and feasibility report complying with Article 10 of the Constitution of Kenya is unconstitutional, illegal and unlawful. iv. A declaration that the Gazette Notice No. 16243 dated 20th November 2024 published in the ELC L PETITION NO. E017 OF 2025 Page 16 of 21 Ruling

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Kenya Gazette issue of 6th December 2024 by the Respondents of intention to acquire parcels of land listed in the said Gazette Notice No. 16243 for construction of Riruta-Ngong Meter Gauge Railway Commuter in Kajiado without prior public participation or stakeholder engagement of the affected land owners contrary to Article 10, 24, 40, 42, 47 and 69 of the Constitution of Kenya thus unconstitutional, illegal and unlawful. v. A mandatory order directing the 2 nd Respondent to publish and prescribe a criteria and guidelines to be adhered to by the acquiring authorities in the acquisition of land under Section 107(2) of the Land Act and Chapter 5 of the Constitution of Kenya. vi. A prerogative Order of CERTIORARI be and is hereby to call, remove, deliver up to this Honourable Court and quash or revoke any the decisions and Respondents contracts for by or financing, between the construction, undertaking and progress of works as proposed in the Gazette Notice No. 16243 dated 20/11/2024 in the Kenya Gazette issue of 6 th ELC L PETITION NO. E017 OF 2025 Page 17 of 21 Ruling

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December 2024 of intention to acquire parcels of land listed in the said Gazette Notice No. 16243 for construction of Riruta-Ngong Meter Gauge Railway Commuter in Kajiado and Nairobi County without prior public participation of the affected land owners or the Petitioners without compliance with legislative measures in EMCA or contrary to Article 10, 24, 40, 42, 47 and 69 of the Constitution of Kenya. vii. An order of INJUNCTION do hereby issue against the Respondents restraining themselves, their agents and servants or anyone acting under their instructions to prevent, stop, discontinue or restrain the said Respondent and or anyone claiming under them from proceeding, carrying out, financing or undertaking the construction of the proposed Ngong-Riruta Meter Gauge Railway Commuter Railway Line passing through RirutaKaren–Bulbul-Ngong in Kajiado and Nairobi County particularly the parcels of land proposed in the Gazette Notice No. 16243 dated 20/11/2024 in the Kenya Gazette issue of 6 th December 2024 without prior compliance with public participation ELC L PETITION NO. E017 OF 2025 Page 18 of 21 and other legislative Ruling

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measures under Articles 10, 42, 69, 153, 201 and 232 of the Constitution of Kenya. viii. Costs of the Petition. 22. On perusal of the judgement in the related suit, I note Justice Anne Omollo dealt extensively with the issue of the EIA licenses, public participation, right to clean and healthy environment, financing and forest land. 23. I note in the instant Petition, the Petitioners presented similar issues including Public Participation, Financing, EIA Licenses, construction protection of biodiversity, but introduced another element on compulsory acquisition of land. 24. It is my considered view that since the principal issues which were before the Court in the former Petition were finally determined by a Court of competent jurisdiction, by dint of the provisions of section 7 of the Civil Procedure Act, this Court is barred from determining the same issues again. ELC L PETITION NO. E017 OF 2025 Page 19 of 21 Ruling

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Further, I note the Petitioners sought to invoke the exceptions in res judicata and argued that the Petition was filed after the issuance of the gazette notice, but I opine that they should have included the said issue in the previous Petition. In my view since the gazette notice only touched on compulsory acquisition of land, but it is trite that disputes revolving around acquisition of land, should first be handled by the Land Acquisition Tribunal, before being subjected to the Court process. 25. Based on the facts as presented while associating myself with the decisions cited and relying on section 7 of the Civil Procedure Act, I find that the instant Petition is res judicata Milimani ELC EP Petition No. E028 of 2024 and will proceed to strike it out. 26. Due to the public interest nature of the instant Petition, I direct each party to bear their own costs. DATED SIGNED AND DELIVERED AT NAIROBI THIS 7TH DAY OF OCTOBER, 2026 ELC L PETITION NO. E017 OF 2025 Page 20 of 21 Ruling

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CHRISTINE OCHIENG JUDGE In the presence of: Brian Okoth for 1st Respondent/Applicant Ms Makena for 2nd Respondent Kinyanjui holding brief for Litoro for Petitioner Court Assistant: Joan ELC L PETITION NO. E017 OF 2025 Page 21 of 21 Ruling

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