Kirongothi & 2 others v National Environment Management Authority & 2 others (Environment and Land Petition E020 of 2025) [2026] KEELC 4829 (KLR) (24 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAJIADO** **ELCL PET NO. E020 OF 2025** **RTD. CPT JESSE KIRONGOTHI ............................................................. 1ST PETITIONER** **CHRISTOPHER MBURU .......................................................................... 2ND PETITIONER** **CHARLES WACHIRA ............................................................................... 3RD PETITIONER** **VERSUS** **KENYA RAILWAY CORPORATION ..................................................... 1ST RESPONDENT** **CHINA COMMUNICATION CONSTRUCTION COMPANY ........... 2ND RESPONDENT** **AND** **NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY ... INTERESTED PARTY** **RULING** ***(In respect of the Notice of Preliminary Objection dated 17th February 2026 and the Notice of Motion dated 18th February 2026)*** **Introduction** 1. Before this Court for determination are two interrelated matters which, pursuant to the directions of the Court, were ordered to be heard concurrently, namely, the **Notice of Preliminary Objection** dated **17th February 2026** by the **2nd Respondent, China Communication Construction Company**, and the **Notice of Motion** dated **18th February 2026** by the **1st Respondent, Kenya Railways Corporation**. The Preliminary Objection challenges the competence of both the Petition and the accompanying Notice of Motion dated 10th December 2025, while the 1st Respondent's application seeks orders striking out and/or dismissing the Petition as against it. The Court directed that the two matters be canvassed together owing to the substantial overlap in the legal issues raised and the reliefs sought. 2. The Petition giving rise to the present proceedings was instituted by **Rtd. Capt. Jesse Kirongothi**, **Christopher Mburu**, and **Charles Wachira** against the **Kenya Railways Corporation** as the 1st Respondent and **China Communication Construction Company** as the 2nd Respondent, with the **National Environment Management Authority (NEMA)** participating as the Interested Party. Contemporaneously with the Petition, the Petitioners filed a Notice of Motion dated **10th December 2025** seeking interim conservatory and ancillary reliefs pending the hearing and determination of the Petition. 3. The 2nd Respondent's Preliminary Objection is founded principally upon the doctrine of **res judicata**. It contends that the present Petition and the accompanying application seek to re-litigate issues that were directly and substantially in issue in **Milimani Environment and Planning Petition No. E028 of 2024**, where, according to the 2nd Respondent, the legality of the public participation process undertaken in respect of the **Riruta–Ngong Commuter Meter Gauge Railway Project** was conclusively determined by a court of competent jurisdiction. The 2nd Respondent further asserts that the parties are litigating under the same title or substantially the same capacity as in the earlier proceedings and that the present proceedings amount to an abuse of the court process. Consequently, it prays that both the Petition and the Notice of Motion dated 10th December 2025 be dismissed with costs. 4. Similarly, through its Notice of Motion dated **18th February 2026**, the 1st Respondent seeks orders that the Petition dated 10th December 2025 and the Amended Notice of Motion of even date be struck out and/or dismissed as against it, that the Court finds the Petition and application to constitute an abuse of the court process, and that costs be awarded to the 1st Respondent. The application is predicated upon grounds that substantially mirror those advanced in the Preliminary Objection, namely that the Petition is barred by the doctrine of **res judicata** and **issue estoppel**, having allegedly re-opened matters concerning public participation, the adequacy of the Environmental and Social Impact Assessment (ESIA), project implementation, and compliance with the Environmental Management and Co-ordination Act (EMCA), all of which, according to the 1st Respondent, were conclusively determined in **Milimani ELC Petition No. E028 of 2024**. The 1st Respondent further contends that the Petition constitutes an impermissible collateral attack upon a valid Environmental Impact Assessment Licence issued by the National Environment Management Authority for the Riruta–Ngong–Kiserian–Ongata Rongai Railway Project and is therefore frivolous, vexatious and an abuse of the court process. 5. The Petitioners opposed the Motion through the **Replying Affidavit of the 1st Petitioner, Rtd. Capt. Jesse Kirongothi, sworn on 13th March 2026**. They dispute the assertion that the Petition is res judicata, maintaining that the present proceedings raise distinct constitutional and environmental grievances which were neither directly nor substantially determined in the earlier proceedings. They further contend that the issues raised require substantive interrogation by the Court and cannot properly be disposed of through either a preliminary objection or a summary application for striking out. **Directions** 1. Pursuant to the Court's directions, both the Preliminary Objection and the Notice of Motion were canvassed together by way of written submissions. **Issues for determination** 1. Having carefully considered the Preliminary Objection dated 17th February 2026, the Notice of Motion dated 18th February 2026, the affidavits on record and the pleadings filed by the parties, the Court is of the considered view that the two applications raise substantially similar questions of law and are therefore amenable to determination together. At their core, both applications invite the Court to determine whether the present Petition is incompetent by reason of the doctrine of **res judicata** and whether the Petition ought to be struck out as constituting an abuse of the court process. 2. From the pleadings and the applications before the Court, the following issues arise for determination: 3. ***Whether the Preliminary Objection raises a pure point of law.*** 4. ***Whether the present Petition is barred by the doctrine of res judicata.*** 5. ***Whether the Petition is otherwise an abuse of the court process warranting striking out.*** 6. ***Whether the Notice of Motion dated 18th February 2026 is merited.*** 7. The law governing preliminary objections is now settled. In ***Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696***, Law JA stated: ***"So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit."*** 1. Sir Charles Newbold P further observed that: ***"A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion."*** 1. The Supreme Court reiterated this position in ***Independent Electoral and Boundaries Commission v Jane Cheperenger & 2 Others [2015] eKLR***, where it held that a preliminary objection must rest upon uncontested facts and should not require the Court to interrogate evidence. 2. The present Preliminary Objection principally invokes the doctrine of res judicata. Whether a plea of res judicata constitutes a pure point of law depends upon the circumstances of each case. Where the previous proceedings, the parties, the issues and the judgment are undisputed and are matters of record, the objection may properly be determined as a preliminary point. Conversely, where the Court is required to investigate contested facts in order to determine whether the parties litigate under the same title or whether the issues are identical, the objection ceases to be a pure point of law. 3. In the present case, the Respondents have invited the Court to compare the current Petition with Milimani ELC Petition No. E028 of 2024. The existence of those proceedings and the judgment delivered therein is not disputed and are on the court record. The plea of res judicata therefore raises a jurisdictional question capable of disposing of the Petition if established. There is the application by the 1st Defendant that raises a similar issue and is supported by an affidavit which annexes the other proceedings. The Court is therefore satisfied that, to the extent that it calls upon the Court to determine whether the suit is barred by section 7 of the Civil Procedure Act, the Preliminary Objection is proper for determination as such alongside the application to strike out the petition. 4. The doctrine of res judicata is codified under section 7 of the Civil Procedure Act, 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... and has been heard and finally decided by such Court."*** 1. The rationale of the doctrine is to bring litigation to an end and to prevent parties from being vexed twice over the same dispute. It is anchored upon the public interest in the finality of litigation and the efficient administration of justice. 2. In ***Independent Electoral and Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR***, the Court of Appeal distilled the elements that must be established before the doctrine can apply, namely: the matter in issue is directly and substantially the same; the former suit was between the same parties or parties claiming under them; the parties litigated under the same title; the matter was heard and finally determined; and the former Court was competent. 3. The Supreme Court reaffirmed these principles in ***John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport, Infrastructure, Housing and Urban Development & 3 Others [2021] KESC 39 (KLR)*** 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. 4. The Respondents contend that the issues surrounding public participation, the Environmental and Social Impact Assessment process, environmental compliance and the implementation of the Riruta–Ngong Commuter Railway Project were conclusively determined in Milimani ELC Petition No. E028 of 2024 and cannot therefore be reopened through the present constitutional petition. 5. The Petitioners, on the other hand, maintain that the present Petition raises distinct grievances concerning the impact of the project upon residents of Kerarapon and that those grievances were never litigated in the earlier proceedings. 6. The Court has carefully examined the pleadings. Although the two Petitions arise from the same infrastructure project, the mere fact that litigation concerns the same project does not inevitably attract the doctrine of res judicata. The Court must determine whether the precise questions now raised were directly and substantially in issue and were finally determined. 7. Equally important is the requirement that the parties litigate under the same title. Explanation 6 to section 7 of the Civil Procedure Act recognizes that where persons litigate bona fide in respect of a public or private right claimed in common for themselves and others, all persons interested in that right are deemed to claim under those litigating parties. However, the application of that explanation is itself dependent upon the nature and scope of the earlier litigation. 8. From the material presently before the Court, it is not immediately apparent that the Petitioners herein were parties to the previous proceedings or that the earlier Petition was prosecuted in such a representative capacity as to bind all residents presently affected by the railway project. Neither is it self-evident that the alleged grievances specific to the Petitioners' locality were conclusively adjudicated in the previous proceedings. 9. Furthermore, determining whether the environmental impacts presently complained of were previously litigated would require the Court to undertake a detailed comparison of the pleadings, evidence and findings in both proceedings. Such an exercise transcends the limited province of a preliminary objection and inevitably calls for factual interrogation. 10. The Supreme Court in **John Florence Maritime Services case** cautioned that while the doctrine of res judicata serves an indispensable public purpose, Courts must apply it cautiously where constitutional litigation is concerned so as not to unjustifiably impede access to justice, particularly where distinct constitutional violations are alleged. 11. The Court is therefore not persuaded that the Respondents have demonstrated, at this interlocutory stage, that every element of section 7 of the Civil Procedure Act has been conclusively established. Accordingly, the plea of res judicata cannot succeed at this preliminary stage. 12. The Respondents further contend that the Petition constitutes an abuse of the court process. 13. There is no doubt that courts possess inherent jurisdiction to prevent abuse of their processes. This power is preserved under sections 1A, 1B and 3A of the Civil Procedure Act and is intended to ensure that judicial processes are not employed oppressively, vexatiously or for collateral purposes. 14. However, striking out proceedings remains one of the most drastic remedies known to civil procedure. In ***D.T. Dobie & Company (Kenya) Ltd v Muchina [1982] KLR 1***, Madan JA famously observed: ***"No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is so weak as to be beyond redemption and incurable by amendment."*** 1. The Court has considered the Petition before it. The Petition raises allegations concerning constitutional rights, environmental governance, public participation and statutory compliance. Whether those allegations are ultimately sustainable is a matter that ought ordinarily to be determined upon consideration of evidence. 2. The Court is unable to conclude, merely from the pleadings, that the Petition is frivolous, vexatious or plainly hopeless. 3. The constitutional jurisdiction of this Court should not be curtailed through summary procedures unless the abuse is plain and obvious. 4. The Court consequently declines to strike out the Petition on this ground. 5. The Motion seeks substantially the same reliefs as those sought through the Preliminary Objection. 6. Having found that the plea of res judicata cannot conclusively be determined on the basis of the present record and that the Petition raises arguable constitutional and environmental questions requiring substantive adjudication, the Court finds no sufficient basis for striking out the Petition. 7. Whether the Petitioners ultimately establish violation of their constitutional rights is a matter reserved for the hearing of the Petition on its merits after all parties have had the opportunity to tender evidence and be heard. 8. Accordingly, the Motion similarly lacks merit. 9. The Court is satisfied that the interests of justice will best be served by allowing the Petition to proceed to hearing so that all contested factual and legal issues may be fully ventilated rather than determined summarily at this interlocutory stage. 10. Consequently, and for the foregoing reasons, the Court makes the following orders: 11. The **Notice of Preliminary Objection dated 17th February 2026** is hereby **dismissed**. 12. The **Notice of Motion dated 18th February 2026** is likewise **dismissed**. 13. The interim orders, if any, shall remain subject to the further directions of the Court pending the hearing and determination of the Petition or until otherwise varied by the Court. 14. The Petition shall proceed to hearing on its merits on a priority basis. 15. Costs of both the Preliminary Objection and the Notice of Motion shall abide the outcome of the Petition. It is so ordered. **Dated, Signed and Delivered at Kajiado Virtually this 24th Day of July 2026.** **M.D. MWANGI** **JUDGE** **In the virtual presence of:** Mr. Bibiu for the Petitioners Ms. Mugi h/b for Mr. Kamau Muturi for the 1st Respondent N/A by the 2nd Respondent Court Assistant: Alex **M.D. MWANGI** **JUDGE**