https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4796

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAJIADO** **JUDICIAL REVIEW APPLICATION NO. E006 OF 2023** **IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW PURSUANT TO ORDER 53 OF THE CIVIL PROCEDURE RULES, 2010** **AND** **IN THE MATTER OF ARTICLES 47, 50 (1) & 60 OF THE CONSTITUTION OF KENYA, 2010** **AND** **IN THE MATTER OF FAIR ADMINISTRATIVE ACTIONS, ACT NO. 4 OF 2015 OF THE LAWS OF KENYA** **AND** **IN THE MATTER OF THE LAW REFORM ACT, CAP 26 OF THE LAWS OF KENYA** **AND** **IN THE MATTER OF THE LAND REGISTRATION ACT, NO. 3 OF 2012, THE LAWS OF KENYA** **AND** **IN THE MATTER OF THE NOTICE BY THE COUNTY GOVERNMENT OF KAJIADO COUNTY EXECUTIVE COMMITTEE MEMBER FOR LANDS, PHYSICAL PLANNING, HOUSING URBAN DEVELOPMENT AND MUNICIPALITY TO ORDER THE SURRENDER OF LETTERS OF ALLOTMENT FOR PLOT NO. A239 AND 123B BULBUL TRADING CENTRE** **BETWEEN** **TIMOTHY KIOK** .............................................................................. **EX PARTE APPLICANT** **AND** **COUNTY GOVERNMENT OF KAJIADO (CECM** **FOR LANDS, PHYSICAL PLANNING, HOUSING,** **URBAN DEVELOPMENT AND MUNICIPALITY)** .............................. **1ST RESPONDENT** **MICHAEL OGOLLA** ................................................................................ **2ND RESPONDENT** **ROSEMARY OMWAMO** ......................................................................... **3RD RESPONDENT** **JUDGEMENT** **Introduction** 1. Before this Court is an application for Judicial Review filed by the Ex Parte Applicant, Timothy Kiok. Leave to commence these proceedings was granted by this Court on 17th May 2023. 2. The Applicant seeks the following primary reliefs: 3. An order of **Certiorari** to bring into this Court and quash the decision of the 1st Respondent, contained in a notice dated 4th May 2023, which required the surrender of letters of allotment for Plot No. A238 and Plot No. A239 Bulbul Trading Centre (formerly Plot No. 430/Residential Bulbul Trading Centre) issued to the Applicant. 4. An order of **Prohibition** to prohibit the 1st Respondent from issuing the notice requiring the surrender of the said letters of allotment. 5. Costs of the application. 6. The Applicant avers that he was registered as the proprietor of the subject plots on 1st March 2001, and his ownership was subsequently validated on 20th May 2017, at which point he was issued with absolute and indefeasible letters of allotment. 7. He contends that on 4th May 2023, the 1st Respondent issued a unilateral and illegal notice directing him to surrender the said letters of allotment within fourteen (14) days. 8. The Applicant argues that the 1st Respondent acted unprocedurally by failing to afford him a fair hearing or notice of the intention to cancel his title, thereby violating the principles of natural justice and the Land Registration Act. Furthermore, he asserts that the lower court judgment (Kajiado MC.CC/168'B'/2006), which the 1st Respondent relied upon to issue the recall notice, did not make any explicit orders directing the cancellation of his letters of allotment. 9. The 2nd and 3rd Respondents oppose the application primarily through the Replying Affidavit sworn by Michael Ogola on 27th September 2024, and his Supplementary Affidavit sworn on 19th March 2026. 10. The Respondents aver that the application is frivolous, marred by *mala fides*, and constitutes an abuse of the court process. They state that the Applicant deliberately concealed the fact that he had filed an appeal against the Kajiado MCCC/168'B'/2006 judgment via Kajiado ELC Appeal No. E031 of 2022, amounting to blatant forum shopping. 11. In the Supplementary Affidavit, the 2nd Respondent provides evidence that the Applicant's appeal (Kajiado ELC Appeal No. E031 of 2022) was heard and wholly dismissed on 2nd October 2025, thereby affirming the lower court's decision that the Applicant had encroached on the Respondents' property. Consequently, the Respondents argue that the current Judicial Review application is *res judicata* and an impermissible collateral attack on a valid and binding court judgment. 12. The Respondents contend that the 14-day notice period stipulated in the 4th May 2023 letter lapsed on or about 18th May 2023. Following this lapse, the 1st Respondent proceeded to cancel the Applicant's wrongfully obtained letters and issued new allotment letters to the 2nd and 3rd Respondents, rendering the orders sought by the Applicant moot and incapable of enforcement. 13. The Respondents further depose that the dispute was even subjected to an Alternative Justice System (AJS) mechanism under the Kajiado Cosmopolitan framework. On 9th March 2026, the AJS panel rendered a determination confirming that the 2nd Respondent is the rightful owner of the plot, a verdict the Applicant has allegedly refused to respect. 14. The 1st Respondent did not enter an appearance nor file any pleadings to participate in these proceedings. 15. The Application was canvassed by way of written submissions. **Analysis Of Submissions** ***Ex-parte Applicant’s Submissions*** 1. The Ex-Parte Applicant’s case is fundamentally anchored on the assertion that the 1st Respondent acted in excess of its jurisdiction and in violation of express constitutional and statutory safeguards. 2. The Applicant asserts that the 1st Respondent acted ultra vires, illegally, irrationally, and with procedural impropriety by issuing the notice dated 4th May 2023. This notice required the surrender and subsequent cancellation of the letters of allotment for Plot No. A238 and A239 Bulbul Trading Centre (formerly Plot No. 430/Residential). 3. The Applicant relies on Articles 47, 50(1), and 60 of the Constitution of Kenya, 2010, read together with the Fair Administrative Actions Act (No. 4 of 2015), Order 53 of the Civil Procedure Rules, 2010, and the Law Reform Act (Cap 26). 4. To support the threshold for Judicial Review intervention, the Applicant cites the case of ***Republic vs Ethics and Anti-Corruption Commission Ex-Parte Nairobi City County Assembly & 13 Others (2019) eKLR***, reiterating the classic common-law grounds for challenging administrative decisions. 5. The Applicant contends that the 1st Respondent fundamentally misinterpreted and overstepped the boundaries of prior judicial pronouncements. The Applicant argues that the 1st Respondent’s decision to recall the allotment letters was based on a prior court judgment dated 29th June 2022. However, no order was ever issued in that judgment directing the cancellation of the Applicant's allotment letters. 6. The Applicant maintains that the judgment merely referenced a surveyor’s report pointing to a localized boundary dispute between Plot Nos. A235, A238, and A239, rather than a defect in the underlying root of ownership. Attempting to cancel the Applicant’s titles to hand them over to the 2nd and 3rd Respondents is argued to be a flagrant breach of express court orders and amounts to unjust enrichment. The Applicant invokes the authority of ***Pastoli vs Kabale District Local Government Council & Others (2008) 2 EA 300*** to support this contention. 7. Addressing the propriety of the suit, the Applicant maintains that the application is a genuine exercise of legal rights. 8. The Applicant contends the application is brought in good faith under Order 53 to quash an arbitrary and high-handed notice. Because leave to apply for Judicial Review was duly granted by the Court on 17th May 2023, the Applicant argues this establishes an arguable case warranting the final issuance of orders of *Certiorari* and *Prohibition*. 9. Contrary to claims of mootness, the Applicant maintains that the threatened and ongoing process of revoking his title documents remains a live illegality that can and should be corrected by the prospective operation of Judicial Review orders. 10. The Applicant prays for the application to be allowed with costs absolute to the Applicant. ***The 2nd And 3rd Respondents' Submissions*** 1. The 2nd and 3rd Respondents mount a vigorous defense primarily rooted in procedural bars, the finality of litigation, and equitable doctrines, arguing that the Applicant's suit is fundamentally flawed and deceptive. 2. The pillar of the Respondents' opposition is that this entire application is barred *in limine* by the doctrine of *res judicata*, codified under Section 7 of the Civil Procedure Act (Cap 21). 3. Relying on the Court of Appeal authority of ***Independent Electoral and Boundaries Commission (IEBC) v Maina Kiai & 5 Others [2017] eKLR***, the Respondents argue all elements of *res judicata* are met: *Sameness of Subject Matter:* The dispute uniquely revolves around the ownership and allotment validity of Plot Nos. A238 and A239 Bulbul Trading Centre. *Sameness of Parties:* The litigants are identical or claim under the same title. *Conclusive Adjudication:* The core dispute was fully ventilated and dismissed in the subordinate court via ***Kajiado MC.CC No. 168 "B" of 2006***, and subsequently affirmed on its merits by the appellate court in ***Kajiado ELC Appeal No. E031 of 2022***. 4. The Respondents submit that the doctrine applies with equal force to constitutional and judicial review applications, citing the Supreme Court of Kenya precedent in ***John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport & Infrastructure & 3 Others [2021] eKLR***. They argue the Applicant cannot use the supervisory jurisdiction of the Environment and Land Court to relitigate a dead issue after exhausting appellate channels. 5. The Respondents argue that the Applicant has completely failed to demonstrate any legitimate grounds for Judicial Review under the *Pastoli case* framework. They maintain that the 1st Respondent acted strictly within its statutory boundaries under the Land Registration Act (No. 3 of 2012). 6. Citing ***Municipal Council of Mombasa v Republic & Umoja Consultants Ltd***, they emphasize that Judicial Review is strictly confined to the lawfulness of the decision-making process, not the substantive merits of the decision itself, framing the Applicant's suit as a disguised, impermissible appeal. 7. The Respondents strongly contend that the application represents a classic collateral attack and a bad-faith abuse of the judicial process. Relying on the Court of Appeal decision in ***Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others***, they submit that the Applicant is weaponizing litigation to accomplish an improper, collateral purpose. 8. They emphasize that the Applicant has consistently bypassed alternative dispute resolution frameworks, including determinations rendered under the Kajiado Cosmopolitan Framework, opting instead to engage in relentless forum shopping for nearly two decades. 9. Citing ***Kenya National Examinations Council v Republic ex parte Geoffrey Gathenji Njoroge & 9 Others***, they point out that *Certiorari* quashes existing decisions, while *Prohibition* stops future unlawful actions. Because the 14-day compliance window in the 4th May 2023 notice lapsed without a stay order, the 1st Respondent already cancelled the Applicant’s allotments and issued fresh allotments to the 2nd Respondent. Consequently, the substratum of the application is spent. 10. The Respondents invoke the equitable maxim that *"he who comes to equity must come with clean hands."* Citing ***John Njue Nyaga v Nicholas Njiru Nyaga & Another***, they argue the Applicant lacked candour by deliberately concealing the dismissal of his prior ELC Appeal (No. E031 of 2022) and suppressing the fact that the County Government had previously offered him an alternative plot. 11. The Respondents invite the Court to reject any literal interpretation of the law that creates an absurdity or impedes public interest. They cite the Canadian case of ***Lalonde v Sun Life Assurance Co of Canada (1992) 3 S.C.R. 261*** and the Indian Supreme Court decision in ***State of Orissa vs. Sudhansu Sekhar Misra*** to emphasize that legal maxims and case precedents must be applied contextually to the precise facts proved. 12. The Respondents seek a departure from standard orders, asking for punitive costs to indemnify them after twenty years of repetitive litigation. They anchor their argument on Section 27(1) of the Civil Procedure Act (Cap 21) and the Supreme Court decision in ***Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others***, which vests broad discretion in the court. They also rely on ***Satya Bhama Gandhi v Director of Public Prosecutions & 3 Others [2018] eKLR*** to argue that costs should penalize litigants who abuse court processes. **Issues For Determination** 1. The issues that arise for determination are framed as follows: ***i. Whether the Application is barred by the Doctrine of Res Judicata and amounts to an Abuse of the Court Process.*** ***ii. 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.*** ***iii. Who should bear the Costs of the Application, and on what scale?*** **Analysis And Determination** ***i. Whether the Application is barred by the Doctrine of Res Judicata and amounts to an Abuse of the Court Process*** 1. The Respondents contend that the present Judicial Review proceedings are barred by the doctrine of res judicata. Their position is that the dispute concerning Plot Nos. A238 and A239 Bulbul Trading Centre was determined in Kajiado MC.CC No. 168 "B" of 2006, whose judgment was affirmed by this Court in Kajiado ELC Appeal No. E031 of 2022. They argue that the Applicant has sought to reopen issues that have attained finality by presenting them in the form of Judicial Review proceedings. They further contend that the Application constitutes a collateral attack upon binding judgments and amounts to forum shopping and an abuse of the process of the Court. 2. The Applicant takes a different position. He submits that the Application does not challenge either the judgment of the subordinate court or the judgment delivered in the appeal. His complaint is directed at the administrative decision contained in the notice dated 4th May 2023 issued by the 1st Respondent requiring him to surrender his letters of allotment. He argues that the legality of that administrative decision has never been the subject of determination before any court and therefore the doctrine of res judicata cannot apply. 3. The starting point is Section 7 of the Civil Procedure Act, Cap 21, Laws of Kenya, which provides: ***"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 is founded upon the principle that litigation must attain finality. Once a competent court has conclusively determined a dispute between parties, neither party should be permitted to reopen the same dispute in subsequent proceedings. 2. In ***Independent Electoral and Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR,*** the Court of Appeal stated: ***"Thus, for the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must 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."*** 1. The Supreme Court reaffirmed the breadth of the doctrine in ***John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport & Infrastructure & 3 Others* [2021] eKLR** where it stated: ***"The doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court."*** 1. The Court in the case of [***John Florence Maritime Services Limited & another vs Cabinet Secretary Transport & Infrastructure & 3 Others (Petition 17 of 2015***](https://kenyalaw.org/akn/ke/judgment/kesc/2021/39)**) [2021] KESC 39 (KLR) (Civ) (6 August 2021) (Judgment),** delved into an in-depth discussion of the concept of res judicata stating that; “***Res judicata is a doctrine of substantive law, its essence being that once the legal rights of parties have been judicially determined, such edict stands as a conclusive statement as to those rights. It would appear that the doctrine of res judicata is to apply in respect of matters of all categories, including issues of constitutional rights.*** ***The doctrine of res judicata, in effect, allows a litigant only one bite at the cherry. It prevents a litigant, or persons claiming under the same title, from returning to court to claim further reliefs not claimed in the earlier action. It is a doctrine that serves the cause of order and efficacy in the adjudication process. The doctrine prevents a multiplicity of suits, which would ordinarily clog the courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively. ………….*** ***Res judicata entails more than procedural technicality, and lies on the plane of a substantive legal concept. The learned authors of Mulla, Code of Civil Procedure, 18th Ed 2012 have observed that the principle of res judicata, as a judicial device on the finality of court decisions, is subject only to the special scenarios of fraud, mistake or lack of jurisdiction (p 293):The principle of finality or res judicata is a matter of public policy and is one of the pillars on which a judicial system is founded. Once a Judgment becomes conclusive, the matters in issue covered thereby cannot be reopened unless fraud or mistake or lack of jurisdiction is cited to challenge it directly at a later stage. The principle is rooted to the rationale that issues decided may not be reopened and has little to do with the merit of the decision.”*** 1. This court must therefore determine what issue was determined in the previous proceedings and whether it is the same issue presented before this Court in a different way. The Court has carefully examined the Notice of Motion, the Statutory Statement and the Verifying Affidavit. The complaint by the Applicant concerns the legality of the notice dated 4th May 2023 calling for the surrender of the letters of allotment and the circumstances leading to its issuance. 2. The material placed before the Court shows that Kajiado MC.CC No. 168 "B" of 2006 concerned the ownership, occupation and boundaries relating to the suit plots; a fact which is not denied by the Applicant. The subordinate court rendered judgment and that judgment was challenged through Kajiado ELC Appeal No. E031 of 2022. In essence, the contest was between the Applicant’s claim of ownership against that of the Respondents. The legality of the letters of allotment held by the Applicant as the basis of his ownership claim and the action by the issuing authority to cancel them, and issue the Respondent with letters of allotment over the suit property was consequently directly and substantially in issue in the case. The same was finally determined by the court and the Applicant preferred an appeal to this court. The appeal was considered and dismissed on 2nd October 2025 thereby affirming the findings of the trial court. 3. That position does not permit a litigant to reopen questions concerning ownership rights or the legality or otherwise of the allotment letters determined by previous courts of competent jurisdiction neither does it permit this Court sitting in Judicial Review to substitute its opinion for that of the subordinate court or the appellate court. 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. 4. The Supreme Court in ***John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport, Infrastructure, Housing and Urban Development & 3 Others [2021] KESC 39 (KLR)*** affirmed and emphasized that res judicata extends not only to matters actually litigated but also to matters that properly belonged to the subject of litigation and which, exercising reasonable diligence, ought to have been raised in the earlier proceedings. 5. 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. Those questions have been determined and attained finality. 6. The Court therefore finds that the cause of action giving rise to the present proceedings arose upon the issuance of the notice dated 4th May 2023. That action constitutes the subject of the dispute already determined by the courts. 7. This court is alive to the call for vigilance in [***E.T vs Attorney General & another***](http://kenyalaw.org/caselaw/cases/view/77824)**(2012) eKLR**, where the court cautioned that; ***“The courts must always be vigilant to guard (against) litigants evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the court. The test is whether the plaintiff in the second suit is trying to bring before the court in another way and in a form of a new cause of action which has been resolved by a court of competent jurisdiction. In the case of Omondi Vs National Bank of Kenya Limited and Others (2001) EA 177 the court held that, ‘parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit.’ In that case the court quoted Kuloba J., in the case of Njangu vs Wambugu and another Nairobi HCCC No2340 of 1991 (unreported) where he stated, ‘If parties were allowed to go on litigating forever over the same issue with the same opponent before courts of competent jurisdiction merely because he gives his case some cosmetic fact lift on every occasion he comes to court, then I do not see the use of the doctrine of res judicata…..”*** 1. The Respondents have also argued that the Applicant engaged in forum shopping and abuse of the process of the Court. 2. The Court appreciates that abuse of process extends beyond res judicata. In ***Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others [2009] eKLR***, the Court of Appeal observed: ***"The term abuse of the process of the court has an element of malice in it. It has to be a misuse of the Court process."*** 1. The Court further stated that abuse of process includes proceedings instituted for purposes other than the legitimate vindication of legal rights. 2. This Court agrees with the Respondents and finds that this matter further constitutes an abuse of the process of court previous judgments having conclusively determined the dispute relating to ownership and occupation of the suit plots. 3. Accordingly, the plea of res judicata and abuse of process succeeds. ***ii. Whether the Application is Moot and the Substratum of the Suit is Spent*** 1. The Respondents submit that the notice dated 4th May 2023 required the Applicant to surrender his letters of allotment within fourteen days. They state that the Applicant neither complied with the notice nor obtained an order staying its implementation. They further depose that upon expiry of the notice period, the 1st Respondent cancelled the Applicant's allotment letters and issued fresh allotment letters to the 2nd and 3rd Respondents. They argue that the impugned decision has therefore been implemented and that no practical purpose can be served by the present proceedings. The Applicant has not denied that assertion. 2. 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. ***iii. Who should bear the Costs of the case?*** 1. The Respondents urge the Court to award punitive costs against the Applicant on the ground that he has engaged in repetitive litigation spanning many years. They submit that the present proceedings constitute an abuse of the Court process and that indemnity costs are warranted. 2. The law relating to costs is contained in Section 27(1) of the Civil Procedure Act, which provides: ***"Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order."*** 1. The principles governing the exercise of the Court's discretion on costs were considered by the Supreme Court in **J*asbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2014] eKLR****,* where the Court stated: ***"It emerges that the award of costs would normally be guided by the principle that 'costs follow the event': the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs."*** 1. From the foregoing, the Notice of Motion dated 17th May 2023 must fail and the Court awards the costs of the case to the 2nd and 3rd Respondents. 2. Consequently, the Notice of Motion dated 17th May 2023 is dismissed with costs to the 2nd and 3rd Respondents. **Orders accordingly.** **Dated, Signed and Delivered at Kajiado Virtually this 20th Day of July 2026.** **M.D. MWANGI** **JUDGE** **In the virtual presence of:** Ms. Kirisiet for the Ex Parte Applicant Mr. Ligami for the 2nd and 3rd Respondents N/A by the 3rd Respondent Court Assistant: Alex **M.D. MWANGI** **JUDGE**