Ashbrook Limited v Chief Land Registrar & 7 others (Petition E004 of 2024) [2025] KEELC 5833 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Notice of Motion application dated 8th October 2024 has any merit, to wit the Applicants had made a case to strike out the Petition
- 2.Whether the parties herein are entitled to the reliefs sought
- 3.Who bears the costs of the application
Key legal issues
#Whether the Petition dated 11th June 2024 is res judicata in light of the judgment in Petition No. 25 of 2021
The Petition is not res judicata because the ownership of LR. No. Kwale/Diani Beach/1352 was not pleaded or determined in Petition No. 25 of 2021, whose final orders only addressed parcels 1526 and 1527
The court reviewed the judgment of Hon. Justice Dena in Petition No. 25 of 2021 and noted that at paragraph 74 she expressly found nothing much was pleaded about parcel 1352, which merely appeared to have been included because it was adjacent to parcels 1526 and 1527. The final orders at paragraph 84 addressed only 1526 and 1527. Applying Section 7 of the Civil Procedure Act and the John Florence test, the same issue was not directly and substantially in issue, so res judicata fails.
Whether the Petition is sub judice given the pending Civil Appeal No. E083 of 2024 before the Court of Appeal at Mombasa
The Petition is not sub judice because the pending appeal concerns only LR. No. Kwale/Diani Beach/1526 and 1527 and not parcel 1352
The court examined the Memorandum of Appeal dated 2nd May 2024 and found that the 'Suit Properties' were defined as parcels 1526 and 1527, with no prayers or grounds addressing parcel 1352. Section 6 of the Civil Procedure Act bars proceedings where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties; since the appeal will not determine ownership of parcel 1352, no conflict of decisions can arise.
Whether the Petition constitutes forum shopping and an abuse of the court process warranting striking out under Order 2 Rule 15 of the Civil Procedure Rules, 2010
The Petition is not forum shopping or an abuse of process; it raises a legitimate cause of action that warrants a full hearing
Applying D.T. Dobie, Co-operative Merchant Bank v Wekesa and Yaya Towers, the court held that the striking-out jurisdiction is discretionary, draconian and to be used sparingly. The Petitioner invoked Articles 40 and 48 of the Constitution on property rights and access to justice, and the alleged fraudulent registration of 26th January 2024 was never canvassed in the prior petition. No frivolity, vexation or intent to harass was demonstrated.
Who bears the costs of the application
The Applicants, having failed, must pay costs to the Petitioner/Respondent
Section 27(1) of the Civil Procedure Act provides that costs follow the event, and Rule 26 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 preserves the court's discretion. The application failed on the fundamental thresholds of res judicata and sub judice, so costs were awarded to the successful Petitioner.
Legal principles established
#- For res judicata to apply, a court must examine the pleadings, record and decision of the previous case to ascertain whether the same issues were determined; ownership of the suit parcel not determined in the prior suit cannot be res judicata
- Sub judice under Section 6 of the Civil Procedure Act does not apply where the pending appeal concerns different suit parcels from the subsequent suit
- Striking out a pleading is a draconian measure to be exercised sparingly and cautiously
Court orders
#- 1.That the Petition dated 11th June 2024 is not res judicata, as the ownership of LR. No. Kwale/Diani Beach/1352 was not determined in Petition No. 25 of 2021
- 2.That the Petition is not sub judice, as Civil Appeal No. E083 of 2024 does not concern LR. No. Kwale/Diani Beach/1352
- 3.That the Petition does not constitute forum shopping or an abuse of the court process, and it raises a legitimate cause of action that merits a full trial
- 4.That the Petition dated 11th June 2024 shall proceed to a full hearing on its merits
- 5.That the 3rd to 8th Respondents' Notice of Motion application dated 8th October 2024 is dismissed with costs to the Petitioner/Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 22, 23 and 162(2)(a) of the Constitution of Kenya, 2010
Relief refused
#Striking out of the Petitioner's Petition dated 11th June 2024
The ownership of LR. No. Kwale/Diani Beach/1352 was neither determined in Petition No. 25 of 2021 nor is it the subject of the pending appeal, so the Petition is not res judicata, sub judice or an abuse of process
Costs of the application to the Applicants
The application failed and costs follow the event
Costs
The Notice of Motion application dated 8th October 2024 is dismissed with costs to the Petitioner/Respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Since the ownership of LR. No. Kwale/Diani Beach/1352 was neither substantially pleaded nor determined in Petition No. 25 of 2021, the doctrine of res judicata does not apply to the instant petition.
Since the Court of Appeal's decision in Civil Appeal No. E083 of 2024 will not determine the ownership of LR. No. Kwale/Diani Beach/1352, the instant petition is not sub judice.
That the petition dated 11th June 2024 shall proceed to a full hearing on its merits
THAT accordingly, the 3rd to 8th Respondents' Notice of Motion application dated 8th October 2024 is dismissed with costs to the Petitioner/Respondent.
No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action, and is so weak as to be beyond redemption and incurable by amendment.
Issues in the judgment
#Internal inconsistency on the date of the judgment in Petition No. 25 of 2021 and the date of the appeal filing, with the supporting affidavit also misdated
The supporting affidavit is described as dated 8th October 2025 in one place while the application is dated 8th October 2024
Niraj Shah's replying affidavit states the appeal is against a judgment dated 3rd May 2024, whereas elsewhere the judgment of Justice Dena is dated 3rd May 2023
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ashbrook Limited v Chief Land Registrar & 7 others (Petition E004 of 2024) [2025] KEELC 5833 (KLR)", Case Analysis (2025). ELC Constitutional Petition No. E004 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5833/eng@2025-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.