Nduvu & 2 others (Suing as the legal representatives of the Estate of Philip Nduvu Kivelenge - Deceased) v Deputy County Commissioner Kilungu Sub-County (As Delegate of the the Cabinet Secretary, Lands and Physical Planning) & 2 others; Kimuya & 4 others (Interested Parties) (Environment and Land Judicial Review Case E004 of 2024) [2025] KEELC 8184 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a land judicial review suit because a prior case over the same parcel had already decided the issues, binding even non-parties.
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 suit is res judicata and therefore whether the court lacks jurisdiction
- 2.Whether this court is functus officio in this matter
Key legal issues
#Whether the suit is res judicata and therefore whether the court lacks jurisdiction
Yes - the suit is caught by res judicata under Explanation (6) of Section 7 of the Civil Procedure Act because the substantive questions over Parcel No. 3075 were fully and finally determined in Makueni ELCJR No. E007 of 2022.
The subject matter of the judicial review application is land Parcel No. 3075, which was the subject of Minister's Appeal No. 341 of 2019 and subsequent judicial review proceedings in Makueni ELCJR No. E007 of 2022, decided by Murigi J on 8th November 2023. Although the Ex-parte Applicants were not parties to those proceedings, under Explanation (6) of Section 7 persons interested in a private right litigated by others are deemed to claim under them. The Applicants are therefore deemed to have been litigating under the same title over the same property, and the suit is barred.
Whether this court is functus officio in this matter
Not separately determined; the suit was dismissed on res judicata, rendering the functus officio ground unnecessary.
Although the preliminary objection raised two grounds - contravention of Section 7 of the Civil Procedure Act and functus officio arising from JR E007 of 2022 - the court framed only the res judicata issue for determination and disposed of the objection on that basis. No separate finding was made on functus officio.
Legal principles established
#- Res judicata is a jurisdictional bar to be addressed in limine; all elements of the bar under Section 7 of the Civil Procedure Act must be satisfied conjunctively.
- The plea of res judicata extends, under Explanation (6) of Section 7, to persons who litigate under the same title and in respect of similar interests and reliefs over the suit property, even if they were not parties to the former suit.
Court orders
#- 1.The 2nd and 3rd Interested Parties' preliminary objection is upheld
- 2.The suit herein is dismissed with costs to the 2nd and 3rd Interested Parties on account of the doctrine of res judicata
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Judicial review jurisdiction of the Environment and Land Court; preliminary objection raised under Section 7 of the Civil Procedure Act, Cap 21
Relief refused
#Judicial review orders of certiorari, mandamus and prohibition against the Respondents
The suit is barred by the doctrine of res judicata under Section 7 of the Civil Procedure Act, particularly Explanation (6), as the subject matter was fully and finally determined in Makueni ELCJR No. E007 of 2022
Costs
The suit is dismissed with costs to the 2nd and 3rd Interested Parties
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.
In the end, the 2nd and 3rd Interested Parties' preliminary objection is merited. The suit herein is hereby dismissed with costs to the 2nd and 3rd Interested Parties on account of the doctrine of res judicata.
It is the finding of this court that the Ex-parte Applicants herein are deemed as persons who were litigating under the same title and in respect of similar interests and reliefs over the suit property Parcel No. 3075.
Res judicata is a matter properly to be addressed in limine as it does possess jurisdictional consequence because it constitutes a statutory peremptory preclusion of a certain category of suits.
Thus, for the bar of res judicata to be efiectively raised and upheld on account of a former suit, the following elements must all be satisfied, as they are rendered not in disjunctive, but conjunctive terms.
Issues in the judgment
#The judgment is internally ambiguous about which land parcel the present suit concerns, noting on one hand that the suit concerns Parcel No. 3075 but also observing that the Applicants were Respondents in Minister's Appeal No. 348 of 2019 concerning Parcel No. 3074, and the court concedes uncertainty.
The ruling's heading and body refer inconsistently to the date the preliminary objection was dated (12th May, 2025) versus submissions dated 29th May, 2025, and the ex-parte parties' names are not stated in the caption, only inferred from the earlier suit.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nduvu & 2 others (Suing as the legal representatives of the Estate of Philip Nduvu Kivelenge - Deceased) v Deputy County Commissioner Kilungu Sub-County (As Delegate of the the Cabinet Secretary, Lands and Physical Planning) & 2 others; Kimuya & 4 others (Interested Parties) (Environment and Land Judicial Review Case E004 of 2024) [2025] KEELC 8184 (KLR)", Case Analysis (2025). Judicial Review (Notice of Motion dated 24th February, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8184/eng@2025-11-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.