Kiok v County Government of Kajiado (CECM for Lands, Physical Planning, Housing, Urban Development and Municipality) & 2 others (Judicial Review Application E006 of 2023) [2026] KEELC 4796 (KLR)
The bottom line
#The Environment and Land Court dismissed a landowner's challenge against Kajiado County because he was relitigating a dispute courts had already 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 Application is barred by the Doctrine of Res Judicata and amounts to an Abuse of the Court Process.
- 2.Whether the Application is Moot and the Substratum of the Suit is spent and consequently Whether the Ex-Parte Applicant is entitled to the Orders of Certiorari and Prohibition sought.
- 3.Who should bear the Costs of the Application, and on what scale?
Key legal issues
#Res judicata and abuse of process
The application was barred by res judicata and constituted an abuse of the court process because the ownership and allotment issues had been finally determined in Kajiado MC.CC No. 168 'B' of 2006, affirmed on appeal in Kajiado ELC Appeal No. E031 of 2022.
The court applied Section 7 of the Civil Procedure Act and the conjunctive elements in IEBC v Maina Kiai, finding the legality of the allotment letters was directly and substantially in issue in the prior litigation. Invoking E.T v Attorney General, it held the Applicant could not evade the doctrine by framing the challenge to the 4th May 2023 notice as a new cause of action.
Mootness and spent substratum
The application was moot because the impugned notice had already been acted upon and the Applicant had not denied the assertion, making the orders sought incapable of being granted in the form sought.
The Respondents showed that the 14-day notice period lapsed on or about 18th May 2023, the allotment letters were cancelled and fresh allotments issued to the 2nd and 3rd Respondents. The Applicant did not contest this, so certiorari and prohibition could not issue.
Costs
Costs followed the event; the Applicant, whose suit was dismissed, was to pay the costs of the 2nd and 3rd Respondents.
Applying Section 27(1) of the Civil Procedure Act and Jasbir Singh Rai v Tarlochan Singh Rai, the court exercised its discretion on the ordinary 'costs follow the event' principle, awarding costs to the successful Respondents.
Legal principles established
#- Res judicata bars a litigant from relitigating, in another form, issues already finally determined between the same parties by a competent court, and applies to judicial review proceedings
- A litigant cannot evade res judicata by dressing up a concluded dispute as a new cause of action
- Abuse of court process extends beyond res judicata and includes misuse of process with an element of malice
Court orders
#- 1.The Notice of Motion dated 17th May 2023 is dismissed
- 2.Costs of the case awarded to the 2nd and 3rd Respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 53 of the Civil Procedure Rules, 2010; Articles 47, 50(1) & 60 of the Constitution; Law Reform Act (Cap 26); Fair Administrative Actions Act (No. 4 of 2015)
Relief refused
#Order of Certiorari to quash the notice dated 4th May 2023 requiring surrender of letters of allotment
Application barred by res judicata, constituted abuse of process, and the impugned notice had already been acted upon rendering the matter moot
Order of Prohibition against the 1st Respondent from issuing notices requiring surrender of letters of allotment
Application dismissed on grounds of res judicata, abuse of process and mootness
Costs
Costs of the case awarded to the 2nd and 3rd Respondents (the application dismissed with costs to the 2nd and 3rd Respondents)
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.
Consequently, the Notice of Motion dated 17th May 2023 is dismissed with costs to the 2nd and 3rd Respondents.
This Court therefore accepts that the impugned notice has already been acted upon rendering this matter moot. The orders sought cannot therefore issue in the form and manner sought.
All that the Applicant is trying to do is to relitigate over the same issue in another way and in the form of ‘a new cause of action’ with the same opponent.
The Applicant cannot through the back door invite this Court to determine whether he is the lawful owner of Plot Nos. A238 and A239 or whether the previous courts reached the correct conclusion.
Accordingly, the plea of res judicata and abuse of process succeeds.
Issues in the judgment
#Inconsistent plot numbers between the title of the matter and the body: the title refers to Plot Nos. A239 and 123B while the reliefs and analysis refer to Plot Nos. A238 and A239
Inconsistent reference to parties: the header lists Rosemary Omwamo as 3rd Respondent, but the appearance section states 'N/A by the 3rd Respondent' although the 3rd Respondent was represented (Mr. Ligami for the 2nd and 3rd Respondents)
Chronological anomaly: a Supplementary Affidavit sworn on 19th March 2026 and an AJS determination of 9th March 2026 post-date the 4th May 2023 notice, and judgment delivered 20th July 2026 with an appeal recorded as dismissed on 2nd October 2025 during pendency of this 2023 application
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiok v County Government of Kajiado (CECM for Lands, Physical Planning, Housing, Urban Development and Municipality) & 2 others (Judicial Review Application E006 of 2023) [2026] KEELC 4796 (KLR)", Case Analysis (2026). ELCJR/E006/2023 (Judicial Review Application No. E006 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4796/eng@2026-07-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.