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ELCStruck OutPetition dated 25/11/2024 (Thika ELC) — number not stated in judgment· [2026] KEELC 1879 (KLR)

The General of the Salvation Army (Registered Trustees) v Chief Officer, Lands Physical Planning and Urban Development, Muranga County & 4 others (Environment and Land Petition E016 of 2024) [2026] KEELC 1879 (KLR)

Environment and Land Court
5 March 2025
2,667 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out a landowner's lawsuit because an earlier judgment already declared the property public land, binding even people who weren't part of that case.

What this practically means

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Executive summary

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The Petitioner, through a Notice of Motion dated 25/11/2024 in a Petition, sought temporary injunctions restraining the Respondents from entering, interfering with or dealing with Land Reference Number 10531 (Originally No. 9213/2) east of Thika Township, and suspension of a 'Tender Notice' advertised in the Daily Nation on 19th November 2024 for quarry mining operations. The Petitioner, through Lt Col David Musyoki's affidavit, claimed to be the registered proprietor of a 945-year lease from 1962 and to run the Church's Officer Training College on the property. The 1st and 2nd Respondents filed a Preliminary Objection dated 20/01/2025 contending that the Court lacked jurisdiction to vary a judgment of a court of equal status, that ownership of LR 9213/1 & 2 had been determined in rem in Samuel Irungu Muiruri & 4 Others v Murang'a County Government & 2 Others (Murang'a ELC Case No. 47 of 2020 (OS), judgment of 6th July 2023) declaring the property county public land under Article 62(2) of the Constitution, that the suit was res judicata, and that Murang'a ELC was the proper territorial forum. The Interested Parties filed no response. Framing two issues - whether the Preliminary Objection merited and whether an injunction was established - the Court held that res judicata and judgment in rem are pure points of law properly raised by preliminary objection; that a judgment in rem binds even non-parties; that granting the orders would effectively vary the extant judgment of a court of equal status; and that the claimant's indolence and the risk of successive fresh claims rendered the suit an abuse of process. The Preliminary Objection succeeded wholly, and the Application and Petition were struck out with costs to the Respondents.

Key legal issues

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01

Whether the Preliminary Objection on res judicata and lack of appellate jurisdiction over a judgment of a court of equal status merited

Holding

The objection succeeded wholly; the Court lacked jurisdiction to vary or set aside the judgment of a court of equal status, and the issue of ownership was res judicata having been determined in rem

Reasoning

The Court noted that judgment in Murang'a ELC Case No. 47 of 2020 (OS) declared the suit property county public land under Article 62(2) of the Constitution and had not been varied, reviewed or appealed. A judgment in rem binds even non-parties, and allowing fresh claims by occupants would cause chaos and abuse of process. Both res judicata and judgment in rem are pure points of law properly raised by preliminary objection. Justice and equity abhor a claimant's indolence and stale claims.

p. 6
02

Whether the Applicant could obtain an interim injunction over the suit property

Holding

No; the Application and Petition were not merited and were struck out

Reasoning

Although the Applicant submitted a prima facie case as registered proprietor relying on Giella v Cassman Brown, the underlying judgment in rem declaring the property public land of Murang'a County Government remained extant and unappealed. Issuing the injunction would have the effect of varying that judgment, which this Court, of equal status, could not do. The interim relief therefore fell with the Petition.

p. 5

Legal principles established

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  • A judgment in rem of a court of competent jurisdiction is conclusive against all the world as to the status of and title to property, and binds persons who were not parties to the suit in which it was made
  • Res judicata and a judgment in rem may be raised by way of preliminary objection as pure points of law
  • It is an abuse of process to raise in subsequent proceedings matters which could and should have been litigated in earlier proceedings

Court orders

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  1. 1.The Application and the Petition are struck out
  2. 2.Costs of the Application and Petition awarded to the Respondents

Authorities

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Legislation

  • Constitution of KenyaArticle 62(2)
  • Constitution of KenyaArticle 162(2)(b)
  • Civil Procedure ActSection 15
  • Civil Procedure ActSection 12
  • Environment and Land Court ActSection 13
  • Environment and Land Court ActSection 26

Cases cited (19)

  • Giella v Cassman Brown & Co. Ltd
    [1973] EA 358
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others
    Nairobi CA No. 39 of 2002 [2003] eKLR
  • Waithaka v Industrial & Commercial Development Corporation
    Civil Case No. 321 of 2001
  • Mukisa Manufacturing Co. Ltd v West End Distributor Limited
    [1969] E.A
  • Attorney General & Another v Andrew Maina Githinji & Another
    [2016] eKLR
  • George Oraro v Barak Eston Mbaya
    [2005] eKLR
  • Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd
    [1989] eKLR
  • National Land Commission v Registered Trustee of the Arya Pratindhi Sabha, Eastern Africa & Another
    [2019] eKLR
  • Abubakar Mohammed v Independent Electoral & Boundaries Commission
    [2017] eKLR
  • George William Kateregga v Commissioner for Land Registration & Others
    Kampala High Court Misc Appl No. 347 of 2023
  • Japheth Nzila Muagi v Kenya Safari Lodges & Hotels Ltd
    [2008] eKLR
  • John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others
    [2015] eKLR
  • Pop-In (Kenya) Ltd & 3 Others v Habib Bank AG Zurich
    [1990] eKLR
  • Yat Tung Investment Co Ltd v Dao Heng Bank Ltd and Another
    [1975] AC 581
  • Belgo Holdings Limited v National Land Commission & another
    Nairobi HC Const. Pet. 21 of 2016, [2017] eKLR
  • ET v Attorney General & Another
    (2012) eKLR
  • Daniel Mesiri Kasoo & 7 Others v Fredrick Nkonge Mutwiri & another
    [2020] eKLR
  • Joshua Ngatu v Jane Mpinda & 3 Others
    [2019] eKLR
  • Samuel Irungu Muiruri & 4 Others v Murang'a County Government & 2 Others
    Murang'a ELC Case No. 47 of 2020 (OS)
Jurisdiction invoked
Article 162(2)(b) of the Constitution read with Section 13 of the Environment and Land Court Act (as submitted by the Applicant); objection founded on Section 15 of the Civil Procedure Act (territorial jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "The General of the Salvation Army (Registered Trustees) v Chief Officer, Lands Physical Planning and Urban Development, Muranga County & 4 others (Environment and Land Petition E016 of 2024) [2026] KEELC 1879 (KLR)", Case Analysis (2025). Petition dated 25/11/2024 (Thika ELC) — number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1879/eng@2026-03-05

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