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ELCStruck OutPetition dated 4th October 2024

Sheria Na Watu v Wambugu & 3 others (Environment & Land Petition E081 of 2024) [2025] KEELC 3905 (KLR)

Environment and Land Court
22 May 2025
2,307 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a residents' petition over Kasarani land because the same ownership dispute had already been decided.

What this practically means

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Executive summary

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The petitioner, a residents' association acting through its chairperson Augustine Omondi, moved the court by notice of motion dated 4 October 2024 under Articles 22 and 23(3)(b) of the Constitution seeking an interim injunction restraining the 1st respondent from constructing on, leasing, selling, charging or otherwise interfering with LR No. 57/1343, Kasarani. The underlying petition sought a declaration that the property is public land reserved for a public primary school, cancellation of the 1st respondent's certificate of lease, reinstatement of the property to Nairobi City County, and a permanent injunction. The 1st respondent opposed, asserting he was the registered owner and an innocent purchaser, and that the same issues had been determined in ELC Case No. E095 of 2021, judgment delivered on 8 February 2024, in which the petitioner-title holder's title was revoked and he was declared the lawful proprietor, with an appeal pending before the Court of Appeal (Civil Appeal No. COACA E479 of 2024). The petitioner contended the petition was brought in public interest, that it was not party to the former suit, and that the public-land question was not determined therein. The court framed two issues: res judicata and entitlement to an interim injunction. Applying Section 7 of the Civil Procedure Act and the Uhuru Highway Development Ltd v Central Bank test, and citing the subsisting orders in ELC E095 of 2021, the court found the petition res judicata and an abuse of process, holding that litigation must come to an end and introducing different parties to relitigate determined issues must be discouraged. The second issue was left undetermined. The notice of motion and the petition 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 is res judicata
  2. 2.Whether the petitioner is entitled to the orders of injunction pending the hearing and determination of the petition

Key legal issues

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01

Whether the petition is res judicata

Holding

Yes - the petition invites the court to relitigate the validity and ownership of the suit property already determined in ELC Case No. E095 of 2021, and is an abuse of process

Reasoning

The court compared the prayers in the petition with the orders issued in ELC Case No. E095 of 2021, where judgment of 8 February 2024 revoked the petitioner's-title holder's interest and declared the 1st respondent the lawful proprietor. Applying Section 7 of the Civil Procedure Act and the Uhuru Highway Development test, the court held that although the petitioner was not a party, the attempt to relitigate the same issue through different parties must be discouraged. Valid orders remain in force pending appeal.

p. 5
02

Whether the petitioner is entitled to an interim injunction

Holding

Not determined - the court found it unnecessary to address this issue after the finding on res judicata

Reasoning

Having found the petition res judicata and struck it out, the court held there was no need to consider the second issue on entitlement to injunctive relief pending hearing of the petition.

p. 5

Legal principles established

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  • Res judicata applies where the issue in the latter suit was directly and substantially in issue in a former suit between the same parties or parties litigating under the same title, heard and decided by a competent court
  • Litigation must come to an end and introducing different parties to relitigate determined issues amounts to an abuse of court process

Court orders

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  1. 1.The notice of motion dated 4th October 2024 and the petition dated 4th October 2024 struck out
  2. 2.Costs of the application and petition awarded 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

On appeal from
Court of Appeal
Civil Appeal No. COACA E479 of 2024
Jurisdiction invoked
Articles 22 and 23(3)(b) of the Constitution of Kenya; Rule 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

Relief refused

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Interim injunction restraining the 1st respondent from dealing with LR No. 57/1343, Kasarani

The entire petition and application were found res judicata and an abuse of court process; the 1st respondent remains the owner of the suit property pending appeal

p. 5

Declaration that LR No. 57/1343 is public property and cancellation of the 1st respondent's certificate of lease

Same issues were determined in ELC Case No. E095 of 2021 between parties litigating over the same property; petition struck out

p. 5

Costs

Costs 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.

In order to rely on the defence of res judicata, there must be a previous suit in which the matter was in issue; the parties must have been the same or litigating under the same title; a competent court must have heard the matter in issue and the issue is raised once again in the fresh suit.
p. 4Elements of res judicata
Particularly, and in this case, there exists valid orders which are in force, and until the court of appeal pronounces itself otherwise, the 1st respondent remains the owner of the suit property.
p. 5Effect of subsisting judgment pending appeal
The notice of motion and the petition dated 4th October, 2024 is hereby struck out with costs to the 1st respondent.
p. 5Final orders - striking out

Issues in the judgment

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minor

The full names of the parties (petitioner and respondents) are not consistently stated in the judgment; the caption and party names are partially obscured or omitted

material

The court's analysis on res judicata does not expressly resolve the petitioner's argument that it was not a party to the former suit and that the public-land question was not determined, despite recording those submissions

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, "Sheria Na Watu v Wambugu & 3 others (Environment & Land Petition E081 of 2024) [2025] KEELC 3905 (KLR)", Case Analysis (2025). Petition dated 4th October 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3905/eng@2025-05-22

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