https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3545

Kanja v Nairobi City County & 2 others (Land Case E230 of 2025) [2026] KEELC 3545 (KLR) (10 June 2026) (Ruling) Neutral citation: [2026] KEELC 3545 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Land Case E230 of 2025 MN Kullow, J June 10, 2026 Between Wairimu Kanja Plaintiff and The Nairobi City County 1st Defendant National Land Commission 2nd Defendant The Chief Land Registrar 3rd Defendant Ruling The Application 1.Before this Court for determination is the Notice of Motion dated 29th July 2025 brought under Section 7 of the Civil Procedure Act, Article 40(6) of the Constitution of Kenya and all other enabling provisions of the law. 2.Through the said application, the Applicant seeks the following orders:a.That the Plaintiff’s suit be struck out and/or dismissed for being res judicata, the matters in issue having been conclusively determined in a previous judicial process relating to the legality of the acquisition of the suit property.b.That the suit is an abuse of the court process, brought in disregard of existing administrative and judicial decisions confirming that the title to the suit property is null and void.c.That the costs of this Application be in the cause. 3.The application is premised on the grounds appearing on its face and is supported by the affidavit of Boniface Waweru sworn on 29th July 2025. The Applicant’s case is that the suit property, being L.R. No. 209/13539/184 upon which House No. 185 (168/80) off Suna Road situated within Woodley Estate, also known as Joseph Kangethe Estate, stands, forms part of public land under the custody and management of Nairobi City County. 4.According to the Applicant, the parcel was irregularly and unlawfully alienated to private individuals in contravention of the legal framework governing the allocation and disposal of public land. It is contended that the Respondent’s title does not emanate from a lawful process and is therefore incapable of conferring any proprietary rights capable of protection by this Court. 5.The Applicant further avers that the suit property was among numerous parcels whose titles were revoked through Gazette Notice No. 15580 published in Volume CXII No. 124 of the Kenya Gazette dated 26th November 2010. It is asserted that the revocation followed comprehensive administrative audits and investigations which established that the affected parcels had been unlawfully carved out of public land and allocated without adherence to mandatory statutory procedures. The Applicant maintains that the revocation process was neither arbitrary nor capricious but was undertaken in furtherance of a public land recovery programme intended to restore public assets that had been unlawfully alienated. 6.The Applicant additionally contends that the legality of titles emanating from L.R. No. 209/13539 and the broader Woodley/Joseph Kangethe Estate has previously been the subject of judicial scrutiny and determination. Reliance is placed on the decision in Kenya Anti-Corruption Commission Vs Paul Moses Ngetha & Others, ELC Case No. 2054 of 2007, wherein the Court allegedly found that titles issued pursuant to the impugned allocation process were null and void ab initio for having originated from an unlawful disposal of public land. 7.The Applicant further avers that the said decision was subsequently upheld by the Court of Appeal in a judgment delivered on 8th November 2024, thereby reaffirming the principle that no valid proprietary interest can arise from an illegal alienation of public land. 8.It is the Applicant’s position that the present suit seeks to revive and re-litigate issues that have already been conclusively determined through both administrative and judicial processes. According to the Applicant, the Respondent’s claim is founded entirely upon a title that has already been declared invalid and whose legal status has been settled by competent authorities and courts of law. 9.The Applicant therefore contends that the suit is barred by the doctrine of res judicata, offends the principle of finality in litigation, undermines public interest considerations relating to the recovery of public land, and constitutes an abuse of the court process warranting dismissal with costs. Response 3.The application is opposed. The Plaintiff/Respondent filed a Replying Affidavit sworn on her own behalf in which she depones that the application is misconceived, legally untenable and constitutes an abuse of the court process. She contends that the Applicant has improperly invoked the doctrine of res judicata and has failed to appreciate the procedural and factual circumstances surrounding the disputes touching on the suit property. According to the Respondent, the present suit raises issues that have not been conclusively determined by any court of competent jurisdiction and therefore remain amenable to adjudication by this Court. 4.The Respondent avers that although the Applicant heavily relies on the decision in Kenya Anti-Corruption Commission Vs Paul Moses Ngetha & Others, ELC Case No. 2054 of 2007, the Applicant has deliberately omitted to disclose the existence of other related proceedings concerning her specific parcel of land. She states that her property was the subject of ELC Case No. 1492 of 2007, Kenya Anti-Corruption Commission Vs Wairimu Kanja, which was instituted separately and whose outcome remains unresolved. It is her position that the mere existence of the decision in ELC Case No. 2054 of 2007 cannot automatically operate to extinguish her independent claim where proceedings directly relating to her title remain pending before the Court. 5.The Respondent further depones that ELC Case No. 1492 of 2007 was at one point dismissed for want of prosecution. However, the Plaintiff in that suit subsequently moved the Court for reinstatement of the matter and the application was allowed. Consequently, the suit was revived and remains active before the Environment and Land Court awaiting hearing and determination. According to the Respondent, the pendency of those proceedings demonstrates that the dispute concerning her title has never been finally adjudicated upon and therefore lacks the element of finality required to sustain a plea of res judicata. 6.It is the Respondent’s case that the Applicant's argument is founded on an erroneous interpretation of the law governing res judicata. She maintains that for the doctrine to apply, there must exist a former suit between the same parties, concerning the same subject matter, litigated under the same title, and most importantly, one that has been heard and finally determined by a competent court. She contends that since ELC Case No. 1492 of 2007 remains pending and unresolved, the threshold prescribed under Section 7 of the Civil Procedure Act has not been satisfied. 7.The Respondent therefore urges the Court to find that the Applicant's plea of res judicata is premature, legally unsustainable and unsupported by the factual record. She maintains that the present suit raises live issues which are yet to be determined by the Court and that striking out the suit at this stage would occasion a miscarriage of justice. For those reasons, she prays that the Notice of Motion dated 29th July 2025 be dismissed with costs. Submission 3.The application was canvassed by way of written submissions. The Applicant’s submissions are dated 11th May 2026, while the Plaintiff/Respondent’s submissions are dated 4th June2026. 4.Counsel for the Applicant submitted that the present suit is res judicata within the meaning of Section 7 of the Civil Procedure Act. It was averred that the legality of the allocation and disposal of parcels arising from L.R. No. 209/13539 (Woodley/Joseph Kangethe Estate), including the suit property, was conclusively determined in Kenya Anti-Corruption Commission Vs Paul Moses Ngetha & Others, ELC Case No. 2054 of 2007, whose findings were subsequently affirmed by the Court of Appeal in Civil Appeal No. E375 of 2020. 5.Counsel submitted that the issues concerning the legality of the allocation process, the validity of the resultant titles and the enforceability of proprietary rights arising therefrom have already been adjudicated upon by courts of competent jurisdiction and cannot be reopened through the present proceedings. In support of this argument, reliance was placed on John Florence Maritime Services Limited & Another Vs Cabinet Secretary for Transport & Infrastructure & 3 Others [2021] eKLR and Section 7 of the Civil Procedure Act. 6.Counsel further submitted that the Plaintiff's claim is founded upon a title derived from the very allocation scheme that was declared unlawful and incapable of conferring valid proprietary rights. It was contended that the Plaintiff is litigating under the same title and interest that formed the subject of the earlier proceedings and that all the ingredients of res judicata have therefore been satisfied. Counsel argued that permitting the suit to proceed would amount to an impermissible collateral attack on final judgments of the Environment and Land Court and the Court of Appeal, would undermine the principle of finality in litigation and would constitute an abuse of the court process. The Court was consequently urged to strike out and dismiss the suit with costs. 7.Counsel for the Plaintiff/Respondent opposed the application and submitted that the Applicant had failed to satisfy the requirements of Section 7 of the Civil Procedure Act on res judicata. Counsel identified the issues for determination as whether all the conjunctive elements of res judicata had been established; whether there existed an identity of parties or parties litigating under the same title between the present suit and Paul Moses Ngetha Vs Kenya Anti-Corruption Commission [2011] KEHC 222 (KLR); whether there was an identity of subject matter between the two suits; whether ELC No. 1492 of 2007, Kenya Anti-Corruption Commission Vs Wairimu Kanja, operated as a bar to the present proceedings; and whether the present suit constituted an abuse of the court process. 8.Counsel relied on John Florence Maritime Services Limited & Another Vs Cabinet Secretary for Transport and Infrastructure & 3 Others [2021] KESC 39 (KLR) and Independent Electoral and Boundaries Commission Vs Kiai & 5 Others [2017] KECA 477 (KLR) for the proposition that all the elements of res judicata must be established conjunctively and that failure to prove any one of them is fatal to the plea. 9.Counsel further submitted that the Plaintiff was not a party to, nor was she litigating under the same title as the parties in, Paul Moses Ngetha Vs Kenya Anti-Corruption Commission [2011] KEHC 222 (KLR) and that her claim arose from a distinct leasehold interest and separate transaction relating to L.R. No. 209/13539/184. It was further argued that the present suit raises private law and constitutional claims, including claims for restitution, compensation and protection of property rights under Article 40 of the Constitution, which were never determined in the earlier proceedings. Reliance was also placed on Bernard Mugo Ndegwa Vs James Nderitu Githae & 2 Others [2010] KEHC 3922 (KLR), Kathubu (suing on her own behalf and on behalf of the Estate of Kazungu Karisa Tsuma) Vs Salim & 2 Others [2024] KEELC 13829 (KLR) and JWK v IKE [2024] KEHC 11647 (KLR). Counsel therefore urged the Court to find that the doctrine of res judicata was inapplicable and to dismiss the Notice of Motion with costs. Issue for Determination 3.Having considered the application, the response thereto and the rival submissions by counsel, it is my view that the sole issue for determination is: Whether the Plaintiff's suit is res judicata and consequently liable to be struck out and/or dismissed. Analysis and Determination 3.The Applicant's application is premised on the doctrine of res judicata. The doctrine is codified under Section 7 of the Civil Procedure Act, which bars a court from trying a suit or issue that has been directly and substantially in issue in a former suit between the same parties, or parties litigating under the same title, and which has been heard and finally determined by a court of competent jurisdiction. 3.The principles governing the doctrine have been settled in a long line of authorities. In Independent Electoral & Boundaries Commission Vs Maina Kiai & 5 Others [2017] eKLR, the Court held that: “The doctrine of res judicata will apply only if it is proved that:I.The suit or issue raised was directly and substantially in issue in the former suit;II.The former suit was between the same parties or parties under whom they or any of them claim;III.Those parties were litigating under the same title;IV.The issue in question was heard and finally determined in the former suit;V.The court which heard and determined the issue was competent to try both the former suit and the subsequent suit." 3.The Court has also been cautioned to guard against litigants who seek to evade the doctrine by merely altering the form of proceedings or introducing additional parties. In ET Vs Attorney General & Another [2012] eKLR, the Court observed that courts must remain vigilant against attempts to reintroduce before the court, through a different cause of action, a dispute that has already been conclusively determined. 4.Applying the foregoing principles to the present case, the Applicant contends that the legality of the allocation of parcels within Woodley/Joseph Kangethe Estate, including the suit property, was conclusively determined in Kenya Anti-Corruption Commission Vs Paul Moses Ngetha & Others, ELC Case No. 2054 of 2007 and that the said determination was subsequently affirmed by the Court of Appeal. It is on that basis that the Applicant argues that the present proceedings amount to a re-litigation of issues that have already been settled by courts of competent jurisdiction. 5.The Respondent, on the other hand, maintains that the present suit does not satisfy the threshold for the application of the doctrine of res judicata. She points out that ELC Case No. 1492 of 2007, Kenya Anti-Corruption Commission Vs Wairimu Kanja, which directly concerns her title to the suit property, was reinstated after its dismissal for want of prosecution and remains pending before the Environment and Land Court. According to the Respondent, the existence of those proceedings demonstrates that the dispute concerning her title has never been finally determined. 6.I have considered the rival positions. Whereas the Applicant has demonstrated the existence of previous litigation touching on the legality of allocations within the broader Woodley/Joseph Kangethe Estate, the material placed before this Court does not establish that the dispute relating to the Respondent's title has been heard and finally determined. Indeed, the Respondent's assertion that ELC Case No. 1492 of 2007 remains pending was not controverted by the Applicant. 7.In my view, the existence of a pending suit directly concerning the Respondent's title is inconsistent with the requirement under Section 7 of the Civil Procedure Act that the matter in issue must have been heard and finally determined. Finality of litigation is not a peripheral consideration; it is one of the essential ingredients upon which the doctrine of res judicata rests. In the absence of evidence demonstrating that ELC Case No. 1492 of 2007 has been conclusively determined, this Court is unable to find that the said requirement has been satisfied. 8.In the premises, I find that the Applicant has failed to satisfy the requirements of Section 7 of the Civil Procedure Act. The doctrine of res judicata is therefore inapplicable to the present proceedings. 9.Accordingly, the Notice of Motion dated 29th July 2025 lacks merit and is hereby dismissed with costs to the Plaintiff/Respondent. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 10TH DAY OF JUNE, 2026.MOHAMMED N. KULLOWJUDGERuling delivered in the presence of: -Ms. Kisoi for 1st Respondent/ApplicantMs. Mwanyika for 2nd Defendant/RespondentPhilomena W. Court Assistant