Gatonye) & another v Kamau (Environment and Land Case E189 of 2025) [2026] KEELC 1745 (KLR)
The bottom line
#The Environment and Land Court refused to strike out a Komarock land dispute suit, ruling that res judicata only applies when the exact same issues were previously decided.
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 matter is res judicata in respect of ELC No. 579 of 2009 as consolidated with ELC No. 489 of 2009 (Joseph Gatonye and another v Jennifer Wangari Kamau and the City Council of Nairobi)
- 2.Whether the plaintiffs' suit should be struck out as incompetent
Key legal issues
#Whether the suit is res judicata to ELC No. 579 of 2009 as consolidated with ELC No. 489 of 2009
The plea of res judicata fails because, although the parties litigated under the same title before a competent court, the prayers in the present suit (general damages for loss of income and continued trespass, special, exemplary and punitive damages) address issues not raised and determined in the former suit.
The court applied Section 7 of the Civil Procedure Act and its five ingredients. A perusal of the former judgment showed the applicant's claimed plot B01 ceased to exist on survey and was converted to Nairobi/Block 133/191, ownership of which was attributed to the plaintiff, and general damages were awarded only to the estate of the 2nd plaintiff. The present claims for loss of income, continued trespass and other damages were not determined in the former suit, so the plea fails on the final-determination limb.
Whether the suit should be struck out as incompetent
The application for striking out was dismissed since res judicata was not established and the court affirmed its jurisdiction over the plaint.
The applicant contended that if the suit were res judicata the court lacked jurisdiction and the suit should be struck out, relying on Order 5 rule 15 of the Civil Procedure Rules. Since the court found the res judicata plea inapplicable, the foundational ground collapsed and the striking-out application was dismissed.
Legal principles established
#- Res judicata under Section 7 of the Civil Procedure Act requires that the issue now raised was directly and substantially in issue, between the same parties litigating under the same title, and was heard and finally determined by a competent court; the doctrine fails where the issues or prayers in the subsequent suit were not raised and determined in the former suit.
- The doctrine of res judicata is founded on public policy and serves finality of litigation and protection from double litigation.
Court orders
#- 1.The application dated 24th September 2025 is dismissed as without merit
- 2.The court is vested with jurisdiction to entertain the plaint dated 14th April 2025
- 3.Costs of the application to be in the main suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the suit properties; the application was brought under Section 7 of the Civil Procedure Act (res judicata) as argued by the applicant
Relief refused
#Striking out the plaintiffs' suit in its entirety as incompetent
The court found the prayers in the present suit were different from those in the former consolidated suits, so res judicata did not apply
Declaration that the court lacks jurisdiction to hear the matter
Having found no res judicata, the court affirmed its jurisdiction
Costs of the application to the applicant
The application was dismissed and costs were made incidental to the main suit
Costs
Costs of the application to be in the main suit
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.
The application dated 24th September 2025 is without merit and hereby dismissed
The court is vested with jurisdiction to entertain the plaint dated 14th April 2025
Costs of the application to be in the main suit
No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title
that there must be finality to litigation and the individual should not be harassed twice with the same account of litigation
Issues in the judgment
#The ruling does not state the names of the applicant/defendant or the 1st plaintiff/1st respondent, nor the suit number of the matter in which the ruling is delivered
The supplementary affidavit is dated 19th December 2015, which predates the application of 24th September 2025, suggesting a typographical error in the year
The judgment refers to Nairobi/block 133/291 in one passage and Nairobi/block 133/191 in another, an apparent inconsistency in the parcel number
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gatonye) & another v Kamau (Environment and Land Case E189 of 2025) [2026] KEELC 1745 (KLR)", Case Analysis (2026). Ruling on Notice of Motion dated 24th September 2025 in respect of plaint dated 14th April 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1745/eng@2026-03-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.