Sheria Na Haki Human Rights Institute v Noor & 10 others; Ethics and Anti-Corruption Commission Directorate of Criminal Investigation (Interested Party) (Constitutional Petition E003 of 2023) [2025] KEELC 5046 (KLR)
The bottom line
#Kenya's Environment and Land Court in Mombasa dismissed attempts to strike out a public-interest land petition and to undo a protective injunction.
What this practically means
#Executive summary
#Key legal issues
#Constitutional avoidance
The Preliminary Objection failed because the Petition, which seeks declarations and judicial review orders on behalf of occupants lacking locus standi in civil proceedings, is not a simple land claim disguised as a constitutional petition
The court applied the Supreme Court's articulation of the avoidance principle in Communications Commission of Kenya and Mativo J's exposition in KKB v SMC. The Petitioner, an NGO acting in public interest for over 100 occupants, pleaded that civil remedies were barred by lack of standing. The Respondents did not show how an ordinary plaint could surmount the standing hurdle. The prayers for declarations and judicial review confirmed the petition was not a simple claim.
Setting aside of injunction order under Order 40 Rule 7
The discretion under Order 40 Rule 7 was not available because Order 'A' emanated from a substantive ruling of Justice L. Naikuni after hearing both parties; dissatisfaction therewith is a matter for appeal
Although Order 40 Rule 7 empowers the court to discharge, vary or set aside an injunction, the order sought to be impugned was the product of a substantive ruling delivered on 20th May 2024 allowing the Petitioner's conservatory orders application. The 1st Respondent's real grievance was with that ruling, and the proper avenue was an appeal, not a fresh application before the same court.
Res judicata
The plea of res judicata failed as the 1st Respondent did not demonstrate identity of parties or subject matter with ELC No. 011 of 2022 (OS)
The court set out the test for res judicata: comparison of the previous decision, pleadings and record with the instant suit to establish identity of issues, parties litigating under the same title, and a decision by a competent court. The mere assertion that names instructing the Petitioner appeared as plaintiffs in the Mombasa suit was insufficient; the 1st Respondent did not explain the alleged identity of parties or subject matter.
Legal principles established
#- Where a constitutional petition raises issues incapable of being addressed wholly through an ordinary plaint, particularly due to standing constraints of the occupants, the doctrine of constitutional avoidance does not apply
- A party dissatisfied with an interlocutory order made after a substantive hearing cannot ask the same court to set it aside; the remedy is an appeal
- On res judicata the court must examine the pleadings and record of the previous case and ascertain whether the parties, issues and subject matter are the same and the previous court was competent
Court orders
#- 1.The Preliminary Objection dated 9th November 2023 is dismissed
- 2.The Notice of Motion dated 3rd October 2024 is dismissed
- 3.Costs of both applications awarded to the Petitioner
- Jurisdiction invoked
- Original constitutional petition jurisdiction of the Environment and Land Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sheria Na Haki Human Rights Institute v Noor & 10 others; Ethics and Anti-Corruption Commission Directorate of Criminal Investigation (Interested Party) (Constitutional Petition E003 of 2023) [2025] KEELC 5046 (KLR)", Case Analysis (2025). ELC Petition No. E003 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5046/eng@2025-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.