https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5203

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **ELC LAND PETITION NO. E034 OF 2024** **ABDIRIZACK BISHAR ARESS…………………………………… 1ST PETITIONER** **ZEITUN NAZALIN ELKINGTON…………………….…..…….2ND PETITIONER** **(Suing in their capacity as residents of Phase 11 Diamond Estate** **=VERSUS=** **ABDIWELI ADAN KALICHA** **ABDULLAHI IBRAHIM MOHAMED** **ABDIKADIR AHMED ALI** **MOHAMED HUSSEIN OMAR** **MOHAMED ABDULLAHI** **MAHAT DAHIR NOOR** **(Sued as the officials of Phase 11** **Diamond Estate Association……..…………………….1ST – 6TH RESPONDENTS** **REGNOIL OIL KENYA LIMITED……………………………..7TH RESPONDENT** **CABON PETROLEUM LIMITED……………………………..8TH RESPONDENT** **AND** **COUNTY GOVERNMENT OF NAIROBI…………..…1ST INTERESTED PARTY** **ETHICS AND ANTI-CORRUPTION COMMISSION..2ND INTERESTED PARTY** **JUDGMENT** 1. The Petitioners instituted this Petition dated 30th July 2025, seeking the following orders: 2. ***A declaration be and is hereby issued that the two plots comprising L.R No. 209/17902 (now converted to Nairobi/Block 160/698) and L.R No. 209/17536/2 (Now converted to Nairobi/Block 160/938 are public land by surrender under Article 62(1) (c ) of the Constitution of Kenya 2010.*** 3. ***A declaratory order be and is hereby issued that the development of a private residential house on a public plot L.R No. 209/17902 (now converted to Nairobi/Block 160/698) contrary to its intended purpose was unlawful.*** 4. ***A permanent injunction be and is hereby issued restraining all the Respondents jointly and/or severally, either by themselves, their agents, servants and assigns from developing, constructing, selling, transferring, leasing, charging and/or in any way dealing with the properties L.R No. 209/17902 (now converted to Nairobi/Block 160/698) and L.R No. 209/17536/2 (now converted to Nairobi/Block 160/938).*** 5. ***An order of Mandamus be and is hereby issued compelling the 8th Respondent to remove at own costs all the building materials, structures, fixtures or developments made on the public land and to restore at own costs the status quo ante of the public land L.R No. 209/17902 (now converted to Nairobi/Block 160/698) within 30 date of the judgment of the court.*** 6. ***An order be and is hereby issued calling for purposes for cancellation, the title in the name of the 7th Respondent in respect of L.R No. 209/17356/2 (now converted to Nairobi/Block 160/938) and in its place a title be issued in the name of the 1st Interested Party.*** 7. ***An order and is hereby issued calling for the purposes of cancellation, the title in the name of the 8th Respondent in respect of L.R No. 209/17902 (now converted to Nairobi/Block 160/698) and in its place a title be issued in the name of the 1st Interested Party.*** 8. ***An order be and is hereby issued compelling the 7th Respondent to transfer and register within 30 days of judgment the two plots comprising of L.R No 209/17902 (now converted to Nairobi/Block 160/698) and L.R No. 209/17536/2 (now converted to Nairobi/Block 160/938) in the name of the 1st Interested Party as required by Regulation 10(6) of the Physical and Land Use Planning (General Development Permission and Control) Regulations (Legal Notice 253 of 2021).*** 9. ***A declaration be and is hereby issued that in withdrawing the application and suit in ELC No. E136 of 2024 thus paving way for the 8th Respondent to continue with its illegalities, the 1st to 6th Respondents failed to act in the best interest of the residents of Phase 11 Diamond Estate in respect of the suit Properties.*** 10. ***That the costs of this suit be provided for.*** 11. The Petition is supported by the affidavit of Abdirizack Bishar Aress, sworn on even date. **THE PETITIONERS’ CASE** 1. The deponent averred that Petitioners, as homeowners and residents of Phase 11 Diamond Estate, are aggrieved by the unlawful conversion of public land into private use, which is contrary to its intended purpose. He argued that the suit properties were designated as public land for a nursery school and a community centre for residents. He asserted that the suit properties should have been transferred and registered in the name of the County Government in accordance with Regulation 10(6) of the Physical and Land Use Planning (General Development Permission and Control) Regulations. 2. He further asserted that the 8th Respondent had commenced private development on the suit property contrary to its intended purpose. He argued that the 7th and 8th Respondents have restricted the use and enjoyment of the public land by residents and other members of the public. 3. He explained that the 1st to 6th Respondents are complacent about the illegal actions of the 7th and 8th Respondents because they withdrew ELC Case No E136 of 2024, paving the way for the illegal development on public land by the 8th Respondent. He argued that although the matter was withdrawn, the title for the public land remains in the name of the 7th and 8th Respondents, who are determined to construct a residential house on the public land designated for a nursery. 4. He further averred that as residents of the estate with an identifiable interest in the land, they were not notified of the proposed conversion of public land, thereby violating their rights to fair administrative action. He asserted that the 8th Respondent is not an innocent purchaser, given that the root of the title is disputed. He asserted that the development plan explicitly indicates that the land is public land that has been surrendered. In conclusion, he urged the Court to allow the Petition as prayed. **THE 1ST – 6TH RESPONDENTS CASE** 1. The 1st and 6th Respondents filed a replying affidavit sworn by Abdiweli Adan Kalicha in opposition to the Petition. 2. The deponent contends that the Petition is fatally defective and should be dismissed with costs. He asserted that the Petition is res judicata, as the issues raised were previously determined in ELC No. E136 of 2024 and ELCPCC No E006 of 2024 involving the same parties and issues. 3. He averred that the suits were consolidated and finalized through a consent judgment dated 5th March 2025. He argued that the 1st Petitioner swore an affidavit in the matters stating that the suit properties were private, not public land. In conclusion, he urged the Court to strike out the Petition with costs to the Respondents. **THE 7TH RESPONDENT’S CASE** 1. The 7th Respondent filed a replying affidavit sworn by Mohamed Maalim Kulmiye in opposition to the Petition. He also relied on the replying affidavit, sworn on 13th October 2025. 2. The deponent averred that the 2nd Interested Party, in collusion with the Petitioners, abused their powers by summoning him to the office for questioning regarding the suit property despite the matter having been concluded in ELC Petition No. 939 of 2014. He stated that the summons accused the 7th Respondent of fraudulent acquisition of the suit properties, which was confirmed by a judgment dated 20th April 2023. He maintained that the Petitioner and the 2nd Interested Party deliberately concealed this information from the Court, despite being aware of this judgment. He further averred that the Petitioners had filed E136 of 2024 and Petition E049 of 2025 against him. Based on the foregoing, he argued that the Petition offends the doctrine of res judicata and should be struck out with costs. The deponent contends that after the 7th Respondent obtained orders in ELC E939 of 2014, a public notice was published in the Daily Nation informing all residents and interested parties about the suit. He maintained that the issues raised in this Petition should have been raised in ELC E939 of 2014 3. He maintained that the Petition does not disclose any infringement of the Constitution by the 7th Respondent. He also argued that the Court lacks jurisdiction because the statutory remedies have not been exhausted. 4. The deponent asserts that the 7th Respondent is the registered owner of the suit properties, having acquired them 12 years ago with the intention of developing a residential estate. He also asserts that the development of Phase 11 Diamond Estate strictly complied with the laws and regulations. 5. He explained that the Town Planning Committee approved the amended Subdivision Plan for L.R No. 209/12341 in a meeting held on 25th May 2007. He averred that the 7th Respondent reserved a portion of the estate for the establishment of a mosque, a police station, a nursery school, and an additional portion for the establishment of a commercial centre aimed at benefiting the estate and for public utility in accordance with the subdivision plan dated 6th April 2007. He argued that L.R. No.209/1756/2 had already been sold to a third party, rendering its surrender impractical. He contended that the 1st Petitioner, a former employee of the 7th Respondent, was aware of the approved amended subdivision plan, indicating that L.R No. 209/17902 was sold to a third party who has since completed construction. 6. He argued that L.R No. 209/17902 was never demarcated for public use, whereas L.R No. 17536/2 was demarcated for commercial purposes as shown in the amended subdivision plan dated 6th April 2007, which the Petitioners failed to disclose by submitting a false subdivision plan. He maintained that the 2007 amended subdivision plan defeats the Petitioners' argument that the suit properties are public land. 7. The deponent asserts that the Petitioners did not present any credible evidence to support their allegations of fraud or illegality regarding the 7th Respondent's acquisition of the title. 8. He argued that Regulation 10 of the Physical and Land Use Planning (General Development Permission and Control) Regulations 2021 cannot vest private property in the County Government without complying with the substantive legal requirements governing the surrender and registration of land. He contended that the assertion that the suit properties are public land is untenable since Petitioners did not produce any duly executed instrument of surrender or any other document to demonstrate that the suit properties were legally surrendered or accepted by the County Government or local authority. 9. In response to the 2nd Interested Party, the deponent denied the contents of the replying affidavit. He argued that the investigations by the 2nd Interested Party do not amount to judicial findings and cannot, on their own, determine proprietary rights or invalidate registered titles. He contended that the investigator's conclusions were incomplete as they failed to consider or make any finding regarding the amended subdivision plan dated 6th April 2007. 10. He reiterated that the amended subdivision plan is the operative planning document and that it demonstrates that L.R No. 209/17902 was never demarcated as public land, whereas L.R. No. 17356/2 was designated for commercial use. He argued that the investigator did not challenge the validity of the amended subdivision plan, nor did they claim it had been cancelled or invalidated by any competent authority. 11. He argued that the investigator relied on survey plans, development plans, registry records and witness statements, which do not constitute an instrument of surrender or a registrable instrument capable of transferring proprietary interest in land. In view of the foregoing, the deponent asserts that the investigations were incomplete and incapable of determining ownership of the suit properties, as the amended subdivision plan was not considered. 12. He denied the allegations that the 7th Respondent admitted that the suit properties are public land. 13. In conclusion, he urged the Court to dismiss the Petition with costs. **THE 2ND INTERESTED PARTY’S CASE** 1. The 2nd Interested Party filed a replying affidavit sworn by its investigator, Phylis Torotich, in support of the Petition. 2. The deponent explained that following the institution of the Petition, the 2nd Interested Party investigated the allegations concerning the illegal acquisition of the suit properties and obtained relevant documents from the Ministry of Lands and Physical Planning and discovered that; L.R Nos 209/17536/2 and 209/17902 were created through FR No. 341/69 and FR No. 341/68 which were approved and authenticated on 13th April 2007; according to FR No. 341/69, the survey of L.R No. 209/17902 was conducted by H. Murwa, a registered Land Surveyor which was approved on 13th April 2007 and gave rise to L.R No. 209/17882-18006 an L.R No. 209/181165-181168. L.R No. 209/17902 was converted to Nairobi Block 160/698; FR No. 341/68 shows that the survey of L.R No. 209/17536 was conducted by H. Murwa and approved on 26th February 2007, resulting in L.R No. 209/17797-17881, L.R No. 209/17536/268-352 and L.R No. 209/18160-18164. L.R No. 209/17536/7 was for surrender upon completion of the subdivision process for community benefit; L.R Nos. 209/17902, L.R No. 209/17536/2 and L.R No. 17536/7 were a result of an amalgamation and subdivision of L.R Nos. 209/12341, 209/12340 and 209/12500 undertaken by H Murwa, and approved on 26th February 2007, as per FR No 464/100. A development plan for Diamond Park Estate was prepared on 23rd February 2006, comprising 640 plots, of which two were specifically designated for shops and a community centre. She maintained that the Principal Cartographer at the Survey of Kenya confirmed the same in his statement and further statement. 3. She further averred that a site visit conducted on 10th November 2025 confirmed that L.R No. 209/17902 is developed with maisonette houses, L.R No. 209/17536/2 is developed with temporary structures, while L.R No. 209/17536/7 is developed with a mosque and a police station. 4. She asserted that the records from the Business Registration Service indicate that Regnoil Oil Kenya Ltd was incorporated on 10th March 2003 as a private limited company with Mohammed Khalif Ali, Mohamed Maalim Kulmia, and Suleiman Gudhow Mohamed as its directors. On 20th August 2008, the directors applied to change the company's officials after Suleiman Gudhow Mohamed sold his shareholding to the remaining directors. 5. She averred that Mohammed Maalim Kulmia, a director of the 7th Respondent, confirmed that Plot No. 240, being L.R No 209/17536/7, houses a police station and a mosque and indicated that the Company is ready and willing to surrender the said parcel to Nairobi City County Government. 6. The deponent contends that, according to FR No. 341/69, L.R No. 209/17536/2 was converted to Nairobi block 160/938, and the survey plan expressly indicates that it was designated for surrender. Similarly, based on FR No. 341/68, L.R. No. 209/17536/2 was also designated for surrender. 7. In light of the foregoing, the deponent asserted that the 7th Respondent unlawfully and irregularly acquired L.R. No. 209/17536/2 and L.R. No. 209/17536/7, which are public land originally designated for public use. 8. The Petition was canvassed by way of written submissions. **THE PETITIONER’S SUBMISSIONS** 1. The Petitioner filed their submissions dated 29th June 2025. 2. On behalf of the Petitioners, Counsel outlined the following issues for the Court’s determination: 3. *Whether L.R No. 209/17902 (now converted to Nairobi/Block 160/698) and L.R No. 209/17536/2 (now converted to Nairobi/Block 160/938), the suit properties are public land;* 4. *Whether the Petitioners have locus standi to prosecute this suit;* 5. *Whether the Court has jurisdiction to hear this matter;* 6. *Whether the prayers sought in the Petition are merited; and* 7. *Who bears the costs?* 8. Regarding the first issue, Counsel submitted that the survey map clearly indicates that the suit properties are public land designated for use by residents of Phase 11 Diamond Estate as a nursery school and community centre. Counsel submitted that the Interested Party confirmed from the records that the suit properties were surrendered to the County Government. To support this point, Counsel relied on Article 62(1) of the Constitution of Kenya 2010, which relates to public land. Counsel argued that the suit properties were earmarked in the approved map for surrender for public use as a nursery and community centre. 9. Counsel argued that Regulation 10(6) of the Physical and Land Use Planning (General Development Permission and Control) Regulations states that land surrendered shall be registered in the name of the County Government. Counsel also argued that land registered or to be registered in the name of the county government is public land. 10. Regarding the second issue, Counsel submitted that the Petitioners have locus standi to bring the Petition as they have produced uncontroverted evidence demonstrating that they are members of Phase 11 Diamond estate. 11. Regarding the third issue, Counsel relied on Section 13 of the Environment and Land Court Act to submit that this Court has jurisdiction to hear this matter, as the dispute relates to land. 12. Regarding the fourth issue, Counsel submitted that if the orders are not granted, the Respondents would dispose of the suit properties to third parties, thereby depriving the Petitioners and the public of the benefit associated with the land. It was submitted that the process of converting public land into private land had not been followed. Counsel argued that granting the orders sought in the Petition would serve the interests of justice. 13. In conclusion, Counsel submitted that the Petition is merited and urged the Court to grant the reliefs with costs to the Petitioners. **THE 1ST TO 6TH RESPONDENTS SUBMISSIONS** 1. The 1st – 6th Respondents filed their submissions dated 1st July 2026. 2. On behalf of the Respondents, Counsel submitted that the Petition herein offends the doctrine of res judicata on account of ELC E136 of 2024 as consolidated with ELCE EPCC E006 OF 2024. Counsel further submitted that the 1st Petitioner participated in the suits and swore affidavits on 5th June 2024 in ELC No. E136 of 2024, which are inconsistent with the Petition herein. Counsel argued that the 1st Petitioner should be charged with perjury as he deposed that the suit properties are not for public utility. 3. Counsel further submitted that the suits were concluded by a consent dated 5th March 2025. 4. Counsel relied on Section 7 of the Civil Procedure Act and the case of **Independent Electoral and Boundaries Commission vs Maina Kiai & 5 others (2017) eKLR** to submit that the Petition is res judicata because the issues and the parties before the Court are the same as those in the previous suits. 5. In conclusion, Counsel urged the Court to strike out the Petition with costs. **THE 7TH RESPONDENT’S SUBMISSIONS** 1. The 7th Respondent filed its submissions dated 15th July 2026. 2. On behalf of the 7th Respondent, Counsel outlined the following issues for the Court’s determination: *a) Whether the Petition is barred by the doctrine of res judicata and constitutes an abuse of the Court’s process;* *b) Whether the Petition meets the constitutional threshold of specificity and precision;* *c) Whether this Court has jurisdiction in light of the doctrine of exhaustion of statutory remedies;* *d) Whether the suit properties constitute public land under Article 62 of the Constitution; and* *e) Whether the Petition is statutorily time-barred under the law of limitations.* 1. Regarding the first issue, Counsel submitted that the Petition is barred by the doctrine of res judicata, as the status, acquisition, and legality of the titles for L.R. No. 209/17902 and L.R. No. 209/17536 were finally determined in ELC Petition No. 939 of 2014, specifically recognising the suit PROPERTY as private land. It was submitted that in the judgment dated 20th April 2023, Justice O.A Angote explicitly held that there was no evidence of fraud or unlawful acquisition and validated the regularization of the titles. To support this point, reliance was placed on **John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others (Petition 17 of 2015) KESC 39 (KLR).** 2. Counsel argued that the Petitioners were aware of ELC 939 of 2014 because the 7th Respondent, after obtaining the necessary orders, published a public notice in the Daily Nation informing all residents and interested parties of the suit. 3. Counsel submitted that the judgment in ELC No 939 of 2014 remains valid and binding as it has not been reviewed or set aside. It was argued that the Petitioner and the 2nd Interested Party concealed this material information from the Court to further their malicious schemes against the 7th Respondent. 4. Counsel further submitted that the Petitioners' attempt to re-litigate the matter amounts to piecemeal litigation. Counsel relied on the rule in **Henderson v Henderson (1843) 3 Hare 100, affirmed by the Court of Appeal in Pop-In (Kenya) Ltd & 3 others v Habib Bank A G Zurich (1990) KLR 609,** where it was held that parties must bring forward their entire case. 5. Counsel submitted that, besides ELC Petition 939 of 2014, there were other previous suits concerning the same suit property, including E136 of 2024, which was filed against the 7th Respondent and later withdrawn, and ELC Petition No. E049 of 2025, also filed against the 7th Respondent. It was argued that the Petitioners concealed this material information from the Court. Counsel contended that the issues raised in this Petition should have been raised in ELC No 939 of 2014 instead of being filed separately. 6. Regarding the second issue, Counsel submitted that the Petitioners have failed to establish any link between any specific act of the 7th Respondent and an infringement of the Petitioners constitutional rights. To support this point, reliance was placed on the case of **Anarita Karimi Njeru v Republic (1979) KLR 154.** Further reliance was placed on **Mumo Matemu v Trusted Society of Human Rights Alliance (2013) eKLR.** 7. Counsel further argued that the Petition is time-barred because the 7th Respondent acquired the suit properties 12 years ago with the intention of developing a residential estate. Counsel also submitted that the 7th Respondent reserved part of the estate for a mosque, a police station, a nursery, and another section for a commercial centre to benefit the estate and the public, in accordance with the approved subdivision plan dated 6th April 2007. It was noted that none of the parties has challenged the validity of the amended subdivision plan from the same date. Counsel maintained that the Petition, which is based on the original subdivision plan, cannot succeed in light of the amended plan. 8. Regarding the third issue, Counsel submitted that the Court lacks jurisdiction to determine the Petition based on the doctrine of exhaustion. Counsel submitted that Parliament has established a comprehensive specialized statutory framework under the Physical and Land Use Planning Act (PLUPA) and its accompanying regulations to govern subdivision approvals and zoning complaints. To support this argument, reliance was placed on **Speaker of the National Assembly v Karume (1992) eklr.** Further reliance was placed on the case of **Geoffrey Muthinja Kabiry & 2 others v Samuel Munga Henry & 1756 others,** where the Court of Appeal held that Courts must be a last resort and not the first port of call. 9. Counsel submitted that the Petitioners have improperly invoked constitutional jurisdiction by deliberately bypassing statutory remedies under the Physical and Land Use Planning Act, the Land Registration Act and the Physical and Land Use Planning (General) Development Permission and Control Regulations 2021, contrary to the principle that constitutional litigation is not a substitute for ordinary statutory processes. 10. Counsel argued that the Court cannot assume jurisdiction where Parliament has expressly provided mechanisms for the resolution of disputes. 11. Counsel relied on the case of **Krystalline Salt Limited v Kenya Revenue Authority and Republic v Nairobi City County and another** to submit that the Petitioners did not file an application for exemption under Section 9(4) of the Fair Administrative Action Act or demonstrate exceptional circumstances to justify bypassing the statutory remedies. 12. Regarding the fourth issue, Counsel submitted that the question of whether the suit properties are public land was settled in ELC No 939 of 2014. 13. Counsel further submitted that the Petitioners have not demonstrated that the suit properties are public land as they have not presented any deed of surrender, vesting document, or registrable instrument transferring these rights from private ownership to the local authority. To support this argument, reliance was placed on Article 62(1)(c) of the Constitution and Regulation 10 of the Physical and Land Use Planning (General Development Permission and Control) Regulations 2021. 14. Regarding the fifth issue, Counsel submitted that the Petitioners' claim is time-barred because the planning decisions, approvals, and subsequent subdivisions under the amended Subdivision Plan occurred in 2007, which was 19 years ago, whereas the 7th Respondent registered its titles 12 years ago. Counsel argued that the law does not protect parties who sleep on their rights only to wake up decades later and destabilise long-established commercial and proprietary interests. 15. It was argued that the 1st Petitioner, a former employee of the 7th Respondent, had knowledge of the development history of the suit properties and the 2007 approved plan. 16. In conclusion, Counsel urged the Court to dismiss the Petition with costs. **THE 2ND INTERESTED PARTY’S SUBMISSIONS** 1. The 2nd Interested Party filed its submissions dated 1st July 2026. 2. On behalf of the 2nd Interested Party, Counsel submitted that the only issue for determination is whether the suit properties were unlawfully acquired. 3. Counsel submitted that the investigations and evidence tendered demonstrate that the suit properties were expressly designated for surrender and community benefit under Survey Plan FR No. 341/68 and FR 341/69, which were approved and authenticated in 2007. Counsel argued that the suit properties were part of the subdivision of L.R Nos. 209/12341, 209/12340 and 209/12500, which had been earmarked for public amenities including shops, a community centre and communal facilities. 4. Counsel further submitted that the registration of the suit properties in the name of the 7th Respondent on 6th May 2008 and subsequently to the 8th Respondent was unlawful and contrary to the constitutional and statutory framework governing public land. To support this argument, reliance was placed on **African Line Transport Co. Ltd v The Attorney General (2011)**, where the Court held that land reserved for public utility cannot be alienated for private use. Further reliance was placed on James **Joram Nyaga & another v Attorney General & another (2007) eKLR,** where the Court held that public land cannot be converted into private ownership without following due process. Further reliance was also placed on **Kenya Anti-Corruption Commission v Online Enterprises Ltd & 4 others (2019) eKLR,** where the Court held that titles irregularly acquired for public land are null and void ab initio. 5. Counsel further submitted that alienating the suit properties would harm community interests and breach the principle of sustainable land use under Article 60 of the Constitution. To support this argument, reliance was placed on **Kenya Hotel Properties Ltd v Attorney General & 6 others (2018) eKLR,** where the Court underscored the importance of protecting land designated for public use from irregular alienation. It was argued that the continued private ownership of the suit properties is contrary to public interest and the Constitutional principles of land governance. 6. In conclusion, Counsel urged the Court to grant the orders sought in the Petition. **ANALYSIS AND DETERMINATION** 1. Having considered the Petition, the respective affidavits, and the rival submissions, the following issues arise for determination: ***a) Whether the present Petition is barred by the doctrine of res judicata;*** ***b) Whether the participation of the EACC as an interested Party affects the application of the doctrine of res judicata;*** ***c) Whether the Petitioners have established that the suit properties constitute public land and that the impugned allocation and registration were unconstitutional and unlawful*** **WHETHER THE PRESENT PETITION IS BARRED BY THE DOCTRINE OF RES JUDICATA** 1. The Petitioners instituted this Petition claiming that the 7th and 8th Respondents had alienated public land for private use. The 1st to 6th Respondents’ principal objection to the Petition is that it is barred by the doctrine of res judicata. The 7th Respondent also contends that the Petition is res judicata on account of prior determinations. 2. The doctrine of res judicata is codified in Section 7 of the Civil Procedure Act, which states as follows: ***“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, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”*** 1. The doctrine of res judicata is defined in Black’s Law Dictionary, 9th Edition, as follows: ***“a thing adjudicated" 1. An issue that has been definitively settled by judicial decision. 2. An affirmative defence barring the same parties from litigating a second lawsuit on the same claim, or any other claim arising from the same transaction or series of transactions, and that could have been but was not raised in the first suit.”*** 1. The elements required to establish a successful defence of res judicata were outlined in **Independent Electoral & Boundaries Commission Vs Maina Kiai & 5 Others [2017] eKLR**, where the Court of Appeal held that: ***“Thus, for the bar of res judicata to be effectively 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;*** ***a) The suit or issue was directly and substantially in issue in the former suit.*** ***b) That former suit was between the same parties or parties under whom they or any of them claim.*** ***c) Those parties were litigating under the same title.*** ***d) The issue was heard and finally determined in the former suit.*** ***e) The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.”*** 1. The doctrine of res judicata is founded on public policy. It seeks to accomplish two primary objectives: ensuring the finality of litigation and safeguarding individuals from repetitive legal proceedings over the same dispute. 2. The essence of the doctrine of res judicata is to bring an end to litigation. A party should not be vexed twice over the same issue. That was the holding **in Omondi v. National Bank of Kenya Ltd and Others (2001) EA 177.** 3. Similarly, the Supreme Court in **John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others** confirmed that the doctrine is based on public policy and applies equally to constitutional litigation where the circumstances meet the statutory requirements. 4. Before considering the merits of the plea of res judicata, it is necessary to address the Court’s earlier finding on the issue. The 1st to 6th Respondents had previously raised the plea, which the Court declined to uphold on the ground that the consent said to have compromised the two suits had not been placed before it. Similarly, the 7th Respondent argued that the suit is res judicata on account of ELC No. 939 of 2014 and ELC No. E049 of 2025. In its ruling dated 18th February 2026, the Court also found that ELC 939 of 2014 and ELC Petition No E049 of 2025, which was still in Court, related to different parcels of land. 5. In the absence of the consent order, the Court found that the Respondents had not discharged the burden of demonstrating that the previous proceedings had been finally determined. The 1st to 6th Respondents have produced the consent adopted by the Court, which expressly states that the consolidated suits were finally settled. The production of the consent cures the evidential deficiency that informed the Court’s earlier finding and places before the Court the complete record necessary for determining the plea. Accordingly, the issue of res judicata falls to be considered afresh on the basis of the evidence now on record. The Court will now determine whether the Respondents have satisfied the elements of res judicata **WHETHER THE PARTIES ARE THE SAME OR LITIGATING UNDER THE SAME TITLE** 1. It is not in dispute that before the filing of this Petition, there existed ELC No. E006 of 2024 and E136 of 2024. The record shows that in both suits, the 1st to 6th Respondents sued in their official capacities as officials of Phase 11 Diamond Estate. In both suits, the 7th Respondent was sued as a Defendant. The 2nd Interested Party herein was also an Interested Party in E136 of 2024. The record shows that the two suits were consolidated and thereafter proceeded as one matter. The 1st Petitioner filed a supporting affidavit stating that he had been elected by the residents and members of Phase 11 Diamond Estate as the incoming officials of the Association. By doing so, he confirmed that he was acting in support and on behalf of the Plaintiffs pursuing their earlier litigation. Having expressly associated himself with the earlier proceedings as an official of the Association, the 1st Petitioner cannot distance himself from those proceedings. He was litigating under the same title and in the same representative capacity as the Plaintiffs in the earlier litigation. 2. The Court observes that the 2nd Petitioner was not a party in the earlier consolidated suits. Section 7 of the Civil Procedure Act extends the doctrine not only to the parties in the former suit but also to persons litigating under the same title or claiming through such parties. Although the 2nd Petitioner was not a Plaintiff in the consolidated suits, he has instituted the present Petition in his capacity as an official of the same Association whose interests were directly represented in the earlier proceedings. He does not assert an independent cause of action distinct from that of the Plaintiffs in the consolidated suits. He essentially seeks the same relief based on the same property. Consequently, he is litigating under the same title as the earlier Plaintiffs within the meaning of Section 7 of the Civil Procedure Act. Based on the foregoing, the Court is satisfied that the requirement regarding identity of the parties has been met. **WHETHER THE ISSUES OR SUBJECT MATTER IS THE SAME** 1. The Court has carefully compared the pleadings in the consolidated suits with those in the present Petition. The record shows that in E024 of 2024, the Plaintiffs sought the following orders: ***(a) An order cancelling the title deed for the properties comprised in L.R No. 209/17902 (now converted to Nairobi/Block 160 /698 and L.R No. 209/17536/2 (now converted to Nairobi/Block 160/938) registered in the name of the Defendant, Regnoil Oil Kenya Limited;*** ***(b) An order directing the Chief Registrar to issue title deeds for the properties comprised in L.R No, 209/17902 (now converted to Nairobi/Block 160/698) and L.R No. 209/17536/2 (now converted to Nairobi/Block 160/938) in favour of the county government of Nairobi;*** ***(c ) Punitive damages against the Defendant for restricting the use of the properties comprised in L.R No. 209/17902(now converted to Nairobi/lock 160/698) and L.R No. 209/17536/2 (now converted to Nairobi/Block 160/938) as public properties meant for use by the residents of Phase !! Diamond Estate; and*** ***(d) costs of the suit,*** 1. In E006 of 2024, the Plaintiffs sought the following orders: 2. ***An order directing the 2nd Defendant to cancel the title deed for the properties comprised in L.R No, 209/17902(now converted to Nairobi/Block 160/698) and L.R No. 209/17536/2 (now converted to Nairobi/Block 160/938) registered in the name of the Defendant, the 1st & 2nd Defendants, Regnoil Oil Kenya Limited and Cabon Petroleum Limited;*** 3. ***An order directing the 2nd Defendant to issue title deeds for the properties comprised in L.R No. No. 209/17902(now converted to Nairobi/Block 160/698) and L.R No. 209/17536/2 (now converted to Nairobi/Block 160/938) in favour of the county Government of Nairobi.*** 4. ***A permanent injunction restraining the Defendant, the 1st & 2nd Defendants either by itself, themselves its agents, their agents servants, officers, its successor in title, and/or any other body or entity from interfering with the public use, developing, constructing, selling, transferring, charging, leasing or dealing in any way with the properties comprised L.R No. 209/17902 (now converted to Nairobi/Block 160/698 and L.R No. 209/17536/2 (now converted to Nairobi/Block 160/938);*** 5. ***Punitive damages against the Defendant, the 1st & 2nd Defendants for restricting the use of the properties comprised in L.R No, 209/17902 (now converted to Nairobi/Block 160/698) and L.R No. 209/17536/2 (now converted to Nairobi/Block 160/938) as public properties meant for use by the residents of Phase II Diamond Estate; and*** 6. ***A permanent injunction restraining the Defendant, the 1st defendant either by itself, its agents, servants, officers and/or any other body or entity from interfering with the operations, running, membership and officials of the Interested Party.*** 7. ***Costs of this suit.*** 8. The central issue in both proceedings is whether the suit properties were public land reserved for public purposes and whether their registration in favour of the 7th Respondent was lawful. The Petitioners herein seek essentially the same reliefs. Although the Petition has been framed as a constitutional petition and additional constitutional provisions have been invoked, the substance of the dispute remains unchanged. Based on the foregoing, this Court finds that the matter directly and substantially in issue in this petition is the same as the matter that was directly and substantially in issue in the consolidated suits. **WHETHER THE FORMER PROCEEDINGS WERE FINALLY DETERMINED** 1. The record shows that the two suits were compromised by a consent dated 5th March 2025, which was adopted by the Court. The consent expressly marked both consolidated suits as finally settled. 2. A consent judgment adopted by a Court is not a mere private agreement between the parties. Once adopted, it becomes a judgment of the Court and finally determines the rights of the parties unless it is subsequently set aside. 3. The law regarding consent judgments is well settled. In **Brooke Bond Liebig (T) v Mallya (1975) EA 266,** the Court held that a consent judgment is binding on the parties and can only be set aside on grounds that would justify setting aside a contract, such as fraud, mistake, misrepresentation or collusion. 4. Similarly, in **Kenya Commercial Bank Ltd vs Specialized Engineering Co. Ltd [1982] KLR 485,** Harris, J held that: ***“A consent order entered into by counsel is binding on all parties to the proceedings and cannot be set aside or varied unless it is proved that it was obtained by fraud or collusion or by an agreement contrary to the policy of the court or where the consent was given without sufficient material facts or in misapprehension or ignorance of such facts in general for a reason which would enable the court to set aside an agreement.”*** 1. In **Flora Wasike v Destimo Wamboko (1982-1988) 1 KAR 625,** the Court held that: ***"It is now settled law that a consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside, or if certain conditions remain to be fulfilled, which are not carried out."*** 1. The Court is called upon to determine whether the Petitioners are bound by the consent. The Petitioners contend that the withdrawal and settlement of the earlier proceedings were unlawful because they were made to facilitate the 8th Respondent to develop the suit properties. That argument cannot succeed for the following reasons: First, the Petitioners have not demonstrated that the consent recorded in the consolidated dated 5th March 2025 has been set aside, reviewed or declared invalid by a Court of competent jurisdiction. Consequently, this Court is bound to recognise the legal effect of that consent, namely that the disputes raised in the consolidated suits have been finally settled. 2. Secondly, a consent judgment remains valid and binding until it is set aside. If indeed the Petitioners believed that the consent had been unlawfully obtained, the proper course was to apply in the earlier proceedings to have it set aside. Unless and until that is done, the consent remains binding on all the parties and those litigating under the same title. 3. The Petitioners invoked numerous constitutional provisions and alleged violations of articles related to public land, public participation, and good governance. At this juncture, the Court is called upon to determine whether the Petition's constitutional nature precludes the application of the doctrine of res judicata. The mere invocation of constitutional provisions does not, of itself, render the doctrine of res judicata inapplicable. 4. In the matter at hand, having considered the evidence on record, the Court is satisfied that the Petition essentially seeks to reopen issues that had already been placed before the Court in the earlier consolidated suits and were conclusively determined by the consent adopted by the Court. **WHETHER THE PARTICIPATION BY THE 2ND INTERESTED PARTY AFFECTS THE DOCTRINE OF RES JUDICATA** 1. The Court has considered the position taken by the 2nd Interested Party. The 2nd Interested Party supports the Petition based on investigations conducted into the allocation of the suit properties. The Court notes that the 2nd Interested Party was also the 2nd Interested Party in ELC E136 of 2024, one of the consolidated suits. However, the present proceedings were not instituted by the 2nd Interested Party in the exercise of its constitutional mandate. They were instituted by the Petitioners, who were parties to the earlier consolidated suits and are therefore bound by the consent that marked those suits as finally settled. 2. The 2nd Interested Party's participation does not change the identity of the principal parties to the dispute nor alter the issues to be determined before this Court. The Court has considered the material arising from the 2nd Interested Party’s investigations. The Court does not make any finding on the correctness or otherwise of those investigations. Nothing in this judgment should be construed as limiting or determining the statutory mandate of the Commission under the Constitution and the law. The judgment merely determines that the present Petition, as brought by the Petitioners, is barred by the doctrine of res judicata. 3. In light of the foregoing, it would be improper for this Court to determine the substantive constitutional issues raised in the Petition, as doing so would amount to reopening matters that have already been settled by a Court of competent jurisdiction. 4. The upshot of the foregoing is that the Petition lacks merit and is hereby dismissed with no order as to costs. **JUDGMENT SIGNED, DATED, AND DELIVERED VIA MICROSOFT TEAMS THIS 31ST DAY OF JULY 2026.** **…………………………** **HON. T. MURIGI** **JUDGE** **IN THE PRESENCE OF: -** Abuga for the Petitioner Adano for the 7th Respondent Ms Biwott for the 2nd Interested Party Vena – Court Assistant .