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ELCStruck OutMakueni ELC Constitutional Petition (Notice of Motion dated 11th November, 2024) - related to Makueni ELC No. 98 of 2017

Ndetei v Muia & another; County Government of Makueni & another (Interested Parties) (Environment & Land Petition 006 of 2024) [2025] KEELC 2974 (KLR)

Environment and Land Court
1 April 2025
1,759 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a land dispute petition because the same parties and property had already been decided, confirming you cannot refile old cases using constitutional language.

What this practically means

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Executive summary

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The Petitioner filed a Constitutional Petition seeking a declaration that he is the legal owner of Plot No. 556, a declaration that the amalgamation of plots into Emali Township Block 1/198 was illegal, orders setting aside a judgment delivered on 28th December 2018 and a ruling of 18th September 2024, preservation orders and costs. He also filed a Notice of Motion dated 11th November 2024 seeking stay of execution of the 18th September 2024 ruling. The 1st Respondent raised a Notice of Preliminary Objection on grounds of res judicata, functus officio, lack of jurisdiction, and abuse of process, noting the Petitioner had appealed the 2018 judgment in Court of Appeal Civil Appeal No. 123 of 2019 and lost. The Petitioner did not file submissions despite being given time. The court framed two issues: whether the Petition is res judicata, and whether it has jurisdiction to overturn a decision affirmed by a higher court. Applying the Supreme Court's decision in John Florence Maritime Services, the court found the parties and subject matter identical to Makueni ELC No. 98 of 2017, which ended in a final judgment affirmed by the Court of Appeal, and held the Petition res judicata. It further held that it has no jurisdiction to set aside a judgment of a court of concurrent jurisdiction, let alone one affirmed on appeal. The Preliminary Objection was upheld and the Petition and Notice of Motion were struck out with costs to the 1st Respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Petition and the Notice of Motion dated 11th November, 2024 are res judicata
  2. 2.Whether this court has jurisdiction to overturn or set aside a decision which has been affirmed by a higher court

Key legal issues

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Whether the Petition is res judicata

Holding

Yes. The parties and subject matter (Emali Township Block 1/198 and Plot 556) are identical to those in Makueni ELC No. 98 of 2017, which was heard and finally decided, and the resulting judgment was affirmed on appeal

Reasoning

Applying the Supreme Court's elements in John Florence Maritime Services, the court found a former final judgment on the merits by a competent court, identical parties (Petitioner was 1st Defendant, 1st Respondent was Plaintiff) and the same subject matter. An application to join the 2nd Interested Party as a defendant had also been struck out, so the matters raised were matters that might and ought to have been raised in the former suit.

p. 4
02

Whether the court has jurisdiction to overturn a decision affirmed by a higher court

Holding

No. The court cannot sit on appeal over its own decision or set aside a judgment affirmed by the Court of Appeal, especially where the Petitioner had already appealed and lost

Reasoning

The Petitioner had appealed the 28th December 2018 judgment to the Court of Appeal (Civil Appeal No. 123 of 2019), which was dismissed. The ruling of 18th September 2024 flowed from that judgment. This court, being of concurrent jurisdiction with its former self and subordinate to the Court of Appeal, is functus officio and lacks jurisdiction to revisit the matter; the proper remedy was appeal, which was not pursued against the ruling.

p. 4

Legal principles established

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  • A court has no jurisdiction to set aside a judgment rendered by a court of concurrent jurisdiction, nor a judgment affirmed by a higher court
  • Res judicata applies to constitutional litigation; parties cannot escape the doctrine merely by invoking constitutional provisions

Court orders

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  1. 1.The Preliminary Objection of the 1st Respondent is upheld
  2. 2.The Petition is struck out with costs to the 1st Respondent
  3. 3.The Notice of Motion dated 11th November, 2024 is struck out with costs to the 1st Respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Constitutional Petition jurisdiction of the Environment and Land Court; res judicata under Section 7 of the Civil Procedure Act

Relief refused

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Declaration that the Petitioner is the legal owner of Plot No. 556

The Petition is res judicata, the same parties and subject matter having been determined in Makueni ELC No. 98 of 2017

p. 4

Declaration that the amalgamation of plots into Emali Township Block 1/198 was illegal, null and void

The court lacks jurisdiction to revisit a judgment affirmed by the Court of Appeal

p. 4

Orders setting aside/reviewing the judgment of 28th December, 2018 and ruling of 18th September, 2024, preservation orders and stay of execution

Struck out with the Petition; the court cannot sit on appeal over its own decision or one of concurrent jurisdiction

p. 5

Costs

Costs of the Petition and the Notice of Motion awarded to the 1st Respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I therefore uphold the Preliminary Objection and proceed to strike out the Petition as well as the Notice of Motion dated 11th November, 2024 with costs to the 1st Respondent.
p. 5Final orders - Petition and Notice of Motion struck out
this court has no jurisdiction to set aside a judgment rendered by a court of concurrent jurisdiction
p. 4Jurisdiction - no review of concurrent-jurisdiction decisions
the doctrine of res judicata is based on the principle of finality which is a matter of public policy
p. 4Res judicata - principle of finality
they only need to invoke some constitutional provision or other
p. 4Res judicata cannot be circumvented by constitutional framing

Issues in the judgment

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minor

Paragraphs 1-3 of the judgment are blank, so the full title and case number of the petition are not stated in the text

minor

Recurring typographical errors in the judgment, e.g. 'res judicata an thus ofiends', 'Functus oficio', 'afirmed', 'Plaintifi', indicating a transcription defect

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, "Ndetei v Muia & another; County Government of Makueni & another (Interested Parties) (Environment & Land Petition 006 of 2024) [2025] KEELC 2974 (KLR)", Case Analysis (2025). Makueni ELC Constitutional Petition (Notice of Motion dated 11th November, 2024) - related to Makueni ELC No. 98 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/2974/eng@2025-04-01

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