https://new.kenyalaw.org/akn/ke/judgment/keca/2026/976

Konchella & another v Attorney General & 4 others (Civil Appeal 247 of 2019) [2026] KECA 976 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KECA 976 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal 247 of 2019 W Karanja, K M'Inoti & LA Achode, JJA May 15, 2026 Between Gideon Sitelu Konchella 1st Appellant Patrick Nyoro Mareki 2nd Appellant and The Hon Attorney General 1st Respondent The District Land Registrar, Kajiado 2nd Respondent Daima Bank Limited (In Liquidation) 3rd Respondent Ribshark Limited 4th Respondent Justus Wachira Kinyngu & 365 others 5th Respondent (Being an Appeal from the Judgment of the High Court of Kenya at Kajiado (C. Ochieng, J.) dated 26th June 2018 in ELC Petition No 6 of 2017) Judgment 1.This matter has a long-checkered history going back three decades ago. It is important that we trace that history, particularly because the petition before the Environment and Land Court, giving rise to this appeal was dismissed mainly on the grounds that it was res judicata, the matter having previously been litigated before different courts. 2.The matter relates to land Parcel No. Kajiado/Kaputei-North/3282 which was registered in the name of Gideon Sitelu Konchella (1st appellant) and land Parcel No. Kajiado/Kaputei–North/3283 registered in the name of Patrick Nyoro Marekia (2nd appellant). 3.Sometime in 1996, the appellants charged the two properties to Daima Bank Limited (in liquidation), the 3rd respondent, in favour of Ribshack Limited (5th respondent). Issues arose regarding the repayment of the loan facility, and the 3rd respondent did what banks do when their loans are not settled. 4.To cut a long story short, the Bank in exercise of its statutory power of sale, sold the charged properties through a public auction to one Justice Wachira Kinyungu (Wachira, one of the 4th respondents). Wachira in turn sub-divided the land into several parcels which he transferred to other parties (4th respondents). 5.The appellant moved to court challenging the charge claiming that the same was null and void for several reasons, among them the ground that the Bank had failed to obtain the consent of the Land Control Board to sell the property. 6.The 1st appellant filed Nairobi HCCC Civil Suit No. 102 of 2002 against the 3rd respondent and there was also Nairobi HCCC No. 627 of 1998 where the Bank sued the 1st appellant for recovery of the loan. In the latter case, a consent judgment was entered for the principal amount while the parties were given time to negotiate on the interest owed. They failed to agree and the matter was heard by Justice Hewett, J. who on 22nd May 2001 entered judgment in favour of the Bank. 7.An application for stay of execution filed by the 1st appellant was heard by Osiemo, J. who, finding no merit in the same, dismissed it. This is what moved the 1st appellant to file Nairobi HCCC No. 102 of 2002; which was also dismissed with costs on 14th March 2005 by Azangalala, J. (as he then was). 8.According to the 1st appellant, the said suit was dismissed for non- attendance and was never heard on merit. One would have thought that the matter ended there, but 7 years later, on 29th October 2012, the appellants moved back to the court vide Constitutional Petition No. 19 of 2012 seeking a raft of orders claiming that their constitutional rights under Articles 19, 20, 22 and 23 of the Constitution had been violated. Their prayers were as follows:-“ 1.There be a declaration that the purported sale of land reference number Kajiado/ Kaputiei – North/ 3282 and Kajiado/ Kaputiei – North/ 3283 to Kemri Staff Welfare Association and subsequently to 366 purchasers by Daima Bank Limited (in Liquidation) was unlawful, illegal, unconstitutional and null and void for want of consent of charge from the Land Control Board. 2.There be a declaration that the sale of the suit premises was unconstitutional as it deprived the Petitioners of their fundamental right to own, use, possess and enjoy their said properties i.e Land Reference Number Kaputiei – North/ 3282 and Kajiado/ Kaputiei – North/ 3283 contrary to Article 40 of the Constitution of Kenya 201. 3.A further declaration that the process to charge the properties to secure a loan of Kshs. 5,000,000/= in favour of the Petitioners was unlawful as they were denied a right to participate in Nairobi HCCC No. 102 of 2002 involving Gideon Sitelu Konchella Vs Daima Bank (K) Limited and HCCC No. 627 of 1998 involving Daima Bank Limited Vs Gideon Sitelu Konchella and another contrary to Articles 22(1) and 23(1) of the Constitution of Kenya 2010. 4. An order of this Honourable Constitutional Court directing the Director of Public Prosecution Republic of Kenya under Article 157 (4) (10) (11) of the Constitution of Kenya 2010 to immediately order for criminal investigation into the fraudulent nature and process of charging, subdividing and selling Land Reference number Kaputiei – North/ 3282 and Kajiado/ Kaputiei – North/ 3283 that was done without the consent of the Land Control Board, no statutory notices of sale, no evidence of drawdown on the principal loan to the Petitioners. 4.Costs of the Petition.” 9.The petition was predicated on the grounds set out therein and in the supporting affidavit of the appellants sworn on even date. The grounds and depositions are summarised in our recapitulation above and bear no repeating. 10.The 1st and 2nd respondents opposed the petition and filed Grounds of Opposition where they stated that the Petition did not disclose any violation of the appellants’ constitutional rights. 11.The 3rd respondent opposed the petition and filed a replying affidavit sworn by Micah Nabori and also grounds of opposition dated the 28th November, 2012. The 3rd respondent confirmed that the appellants were registered proprietors of the suit properties; Land parcel numbers Kajiado/Kaputiei-North/3282 and Kajiado/Kaputiei-North/3283 respectively. It contended that the appellants approached the bank for a loan facility and the 3rd respondent accepted, vide the terms contained in the letter of offer dated the 3rd January, 1996 which was signed on 30th January, 1996 for a term loan of Kshs. 5 million and a subsequent charge to that effect. Further, that the 1st appellant accepted to charge his suit property and a legal charge was executed in favour of the 3rd respondent dated the 19th February, 1996. It contended that both the appellants defaulted in repaying the loan culminating in the 3rd respondent exercising its statutory power of sale. The rest is captured in our summary above. 12.The 3rd respondent contended that the 1st appellant applied for stay of execution pending appeal before Osiemo, J. who delivered a ruling dated the 23rd October, 2001 where the said application was dismissed with costs, leading to the 3rd respondent proceeding to execute the decree. It confirmed that the 1st appellant later filed a suit to wit Nairobi HCCC No. 102 of 2002 dated the 13th November, 2001 and lodged in court on 30th January, 2002. It stated that the 3rd respondent exercised its statutory power of sale and sold by public auction land parcel number Kajiado/Kaputiei/North/3282 as evidenced by the agreement of sale between the 3rd respondent and Pendo Holdings Limited dated the 22nd March, 2002. According to the 3rd respondent, the 2nd appellant never questioned and/or contested the sale of the charged land for a period of over 10 years. 13.The 3rd respondent confirmed that HCCC No. 102 of 2002 by the 1st appellant was dismissed with costs, for want of prosecution, on 14th March, 2005 by Azangalala, J.(as he then was). 14.C. Ochieng, J. considered the appellants’ constitutional petition, the responses by the respondents and the submissions on record. The issues framed before the trial court were:-a.whether the Petitioners’ constitutional rights to own property had been violated;b.whether the respondents’ conduct constitutes a violation and contravention of the Constitution; andc.whether the petition should be deemed as res judicata. 15.On the issue as to whether the petition should be deemed as res- judicata, the court found there have been two suits that have been heard and determined by courts of competent jurisdiction in respect of the suit lands. The learned Judge found that the issues raised in the petition were already heard and determined vide Nairobi HCCC No. 627 of 1998 as well as Nairobi HCCC No. 102 of 2002 hence that the petition was res judicata. 16.On the issue as to whether the appellants’ constitutional rights to own property has been violated, the learned Judge found that the issues of the procurement of the loan including the sale of the suit lands was already heard and determined in Nairobi HCCC No. 102 of 2002 involving Gideon Sitelu Konchella –vs- Daima Bank Limited and Nairobi HCCC No. 627 of 1998 involving Daima Bank Limited –vs- Gideon Sitelu Konchella. The Judge also found that the allegations of violations raised by the appellants were issues of private law that are governed by the Land Control Act, the Registered Land Act (Repealed), and the Banking Act. 17.The learned Judge also made a finding to the effect that the appellants already had two forums within the two cases, where the issues pertaining to the process of charging the suit land as well as the chargee exercising its statutory power of sale wrongly was heard and determined. The Judge noted that the 1st appellant even proceeded to repay the loan after the proceeds from the sale of the charged property had been factored into the loan and there was a remaining balance. 18.The learned Judge opined that the appellants had instituted the petition to clothe their claim against the 3rd respondent in a different apparel so as to vex the respondents especially the 4th respondents who had purchased the suit lands for value without notice. 19.As to whether the respondents conduct constituted a violation and contravention of the Constitution, the learned Judge, citing the case of Anarita Karimi Njeri -vs- R. (1976 – 1980) KLR 1272 reiterated that the petitioner must state and identify the rights allegedly violated with precision and how the same have been infringed. The Judge found that in the petition, the appellants had not identified, with precision, which of their rights were infringed by each of the respondents. The Judge concluded that the 3rd respondent had properly adhered to the due process before exercising its statutory power of sale, and that the 4th respondents who bought the suit land were purchasers for value without notice and had proceeded to subdivide the said land which now has new titles. The learned Judge held that the court cannot interfere with the 4th respondents’ rights to enjoy a property which they freely purchased. 20.In conclusion the learned Judge found the amended petition dated 29th October, 2012 and filed on 30th October, 2012 unmerited and dismissed it with costs to the respondents. 21.Aggrieved with the said judgment, the appellants preferred an appeal to this Court on grounds, inter alia, that the learned Judge erred in fact and in law in failing to find that the appellants’ claim on violation of their right to property under Article 40 was a violation of a constitutional right and were properly before the court as petitioners; in relying on extraneous facts to find that the petition in respect to the 2nd appellant was res judicata yet there has never been a suit between the 2nd appellant and the respondents and no such evidence was adduced in court; in taking into account extraneous factors in finding that the 2nd appellant should have been a party in HCCC No. 627 of 1998 - Daima Bank -vs- Gideon Sitelu Konchella and HCCC No. 102 of 2002 - Gideon Sitelu Konchella -vs- Daima Bank yet the 2nd appellant was never sued in both cases; in failing to find that the appellants never applied for and had not appeared before the Land Control Board for consent to charge their suit properties by the 3rd respondent; in finding that a suit, HCCC No. 102 of 2002, between the 1st appellant and the 3rd respondent which had been dismissed for want of prosecution amounted to res judicata contrary to the express provisions of the law; in substituting and redrawing the agreements between the parties instead of enforcing the will and intention of the parties contrary to the law; in misinterpreting the law as it relates to the principles of res-judicata; in taking into account extraneous and unsubstantiated facts that the dispute between the 1st appellant and the 3rd respondent in respect to HCCC No. 627 of 1998 and 102 of 2002 related to the sale of the 1st appellant’s suit property yet as at that time no issue of sale had been conducted nor had the 3rd respondent exercised its power of sale hence the issue therein and the petition were substantially similar; in failing to evaluate and determine the issues raised in the petition and the appellants submissions; in failing to find that the appellants have proved their case on a balance of probability yet evidence on record and the law points to the same; and, in dismissing the petition despite overwhelming evidence to support the granting of the same. 22.When the appeal came up for hearing on a virtual platform on 30th April 2025, learned counsel Ms. Njeri Kariuki held brief for Mr. Koceyo for the appellants, learned counsel Mr. Nuthu appeared for the 3rd respondent and learned counsel Mr. Kanga appeared for the 4th Respondent. 23.All parties filed submissions through their respective counsel, each supporting its stand. Counsel adopted their written submissions in entirety as filed and opted not to highlight them. 24.We have keenly considered the said submissions, the cited authorities and the relevant law. This being a first appeal, our remit as circumscribed by rule 31(1) of the Court of Appeal Rules is to re-analyse and evaluate afresh the evidence adduced before the trial court in its entirety and arrive at our own decision. This mandate was well articulated in the case of Abok James Odera t/a A. J. Odera & Associates -vs- John Patrick Machira t/a Machira & Co Advocates [2013] eKLR where the Court pronounced the role of this Court on first appeal as follows:-“…to re-evaluate, re-assess and re-analyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.” 25.Having considered the record of appeal in its entirety along with the submissions filed and adopted by the parties and the law, we decipher two broad issues that fall for our determination:a.whether the learned Judge erred in finding that the appellants’ petition was res judicata; and,b.whether the learned Judge fell into error in finding that the appellants’ constitutional petition failed to meet the threshold of reasonable precision and proof required in constitutional litigation. 26.On the issue of res judicata, it was the 3rd and 4th respondents’ submissions that several suits had been filed in relation to the same issues raised in the petition and that these issues had been ventilated fully. The 3rd and 4th respondents argued that HCCC No. 627 of 1998 and HCCC No. 102 of 2002 filed by the 3rd respondent and the 1st appellant respectively related to the same issues relating to the subject properties; that the issues raised were whether the dealings with the appellants’ land were void for lack of consent of the Land Control Board and whether the Charge and sale of the suit properties were done lawfully by the 3rd respondent. They argued that the issues raised in the suits were ventilated with the attendant judgment, decree, and final orders being issued in the above suits and more specifically in HCCC No. 627 of 1998 where the matter proceeded and a judgement was rendered. 27.In finding that the petition was res judicata, the learned Judge found that the appellants were privy to the outcome in Nairobi HCCC No. 627 of 1998 which gave rise to the auction of the suit properties and of HCCC No. 102 of 2002 filed by the 1st appellant which was dismissed with costs for want of prosecution on 14th March, 2005. The Judge held that the bottom line of the matter was that the appellants were required to bring forth in the previous suits all the issues they had, including the issues raised in the petition, which they had. The Judge found that the appellants were trying to have a second bite at the cherry, which could not be allowed. 28.Can the learned Judge be faulted for so finding? We have considered this issue. We note that the petition rotated around suit lands Parcels No. Kajiado/Kaputiei-North/3282 and Kajiado/Kaputiei–North/3283 and the charge of the suit properties to the 3rd respondent to secure a loan of Kshs.5,000,000 extended to the appellants and credited to the 5th respondent to reduce its indebtedness to the Bank. Part of the facts relied upon by the appellants was that the 3rd and 4th respondents arbitrarily deprived them of the proprietorship and interest over the suit properties. 29.We have examined the issues raised between the parties in the petition and the two High Court cases. In Nairobi HCCC No. 627 of 1998, the 3rd respondent sued the 1st appellant for recovery of the balance of the outstanding loan. The loan was admitted, and the only disputed issue was the interest claimed by the bank. As noted earlier, the parties filed a consent in court, before Hewett J. in regard to the principal amount and judgment was entered to that effect. They were given time to agree on the interest, but failing to agree, that issue was canvassed and judgment on the interest was also awarded. The 1st appellant did not contest the validity of the charge in that suit. Having failed to do so, he squandered that opportunity and the matter became res judicata and he could not raise it through the constitutional petition. 30.As we have noted herein above, the suit properties are the subject matter of the three cases. The two civil cases at the High Court raised issues regarding the correct amount owed by the appellants to the 3rd respondent, and impropriety on the part of the 3rd respondent in the handling of the loan account. They also revolved around the propriety of the sale of the suit property. The alleged violations that the appellants raised in the petition at the ELC could have been raised in the previous suits, including claiming damages for the alleged violations. Looking at what the appellants sought in the petition, it is clear that the issues raised are similar to those in these two suits. 31.Both the appellant and the 3rd and 4th respondents in their submissions were in agreement that HCCC No. 627 of 1998 was concluded and there was a judgement, but that HCCC No. 102 of 2002 was dismissed for want of prosecution. Counsel for the appellants submitted that the dismissal of HCCC No. 102 of 2002 could not be considered to suggest that the matter was res judicata the Petition as the same had not been heard nor fully argued nor were the issues finally determined. We agree. Nonetheless, we note that the issues raised in the dismissed suit could have been raised and canvassed in Civil Suit No. 627 of 1998. The latter suit could still have been challenged for being res judicata the former. Subsequent proceedings culminating in Civil Appeal No. 55 of 2014 were equally unsuccessful. 32.An argument was advanced to the effect that the 2nd appellant was not a party in HCCC No. 627 of 1998 and so he cannot be caught up by the res judicata rule. We find it necessary to quote the definition of res judicata to settle this argument. Section 7 of the Civil Procedure Act provides 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.” 33.Explanation (4) is of relevance to the appeal before us. It provides:-“Any matter which might and ought to have been made ground of defence or attack in such for a suit shall be deemed to have been a matter directly and substantially in issue in such suit.” 34.All issues touching on the loan facility between the Bank and the appellants ought to have been raised in the first suit by way of counter claim. 35.We also note that the 2nd appellant’s interest in the suit was the same as that of the first appellant as the contest was over the same amount of money and the issues were the same, and that would explain why, maybe, he was not joined us a party or he did not choose to join the suit. To that extent, it cannot be said that he was prejudiced or that his rights to fair hearing were violated. The same claim could not be relitigated under the guise that the second appellant had not been involved in the previous suits. The fact remains that he ought to have been joined as a party and his rights were determined within the civil suit in which the consent was filed and which consent was never set aside and no appeal was ever filed against that decision. 36.As noted earlier, the 1st appellant filed an application dated 12th May 2005 applying to set aside the order dismissing his suit for want of prosecution. Unfortunately for the 1st appellant that application was dismissed on 30th October 2013 and that sealed his fate. It was not open for the 1st appellant(s) to institute a fresh suit disguised as a constitutional petition replicating the same issues now camouflaged as breach of constitutional rights. Such an approach is impermissible and if allowed, it would create endless litigation and defeat the purpose of the principle of res judicata, which is to basically stop parties from litigating ad nauseum over the same issues before different fora and bring litigation to a close. 37.Kenyan courts have consistently emphasized that res judicata is not merely a technical rule but a doctrine grounded in public policy. It serves to protect litigants from vexatious litigation; conserve judicial resources; and to promote certainty and finality in legal proceedings. This doctrine has been litigated in the entire gamut of courts in Kenya, from the Magistrates’ courts to the Supreme Court. This Court in its decision in Uhuru Highway Development Limited -vs- Central Bank of Kenya [1999] eKLR underscored that res judicata applies not only to issues actually litigated but also to those that could have been raised. The position was reiterated in John Florence Maritime Services -vs- Cabinet Secretary for Transport and Infrastructure [2015] eKLR where this Court clarified that res judicata applies to both civil and constitutional matters, provided the conditions are met. 38.This Court in its decision in Independent Electoral and Boundaries Commission -vs- Maina Kiai and 5 others [2017] eKLR affirmed that res judicata extends to constitutional litigation, preventing parties from re-litigating issues already settled. The constitutional claim does not, therefore,validate or resurrect causes of action or matters that have been heard and determined before other courts of competent jurisdiction. 39.For the forgoing reasons, we find, as did the trial court, that, the appellant’s constitutional petition was a parallel process anchored on the same dispute between the parties, thereby rendering the matter, irredeemably, res judicata. 40.The second issue is whether the petition, were it not res judicata, met the threshold of reasonable precision and proof required in constitutional litigation. 41.A foundational requirement in constitutional litigation is that a Petition must be framed with clarity and precision. This principle was firmly established in Anarita Karimi Njeru -vs- Republic (supra) and has since been consistently affirmed by the courts. A Petitioner is therefore required to distinctly identify the constitutional provisions alleged to have been violated and clearly demonstrate how such violations have occurred. Vague or generalized allegations are insufficient to invoke the court’s constitutional jurisdiction. 42.This requirement was upheld by this Court in the case of Mumo Matemu -vs- Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR where it was stated that a party approaching the court for constitutional relief must articulate, with reasonable specificity, the complaint being raised, the provisions said to be infringed, and the manner of infringement. The Court emphasized that this level of precision is essential to enable both the court and the opposing party to understand the exact nature of the case being advanced. 43.The Supreme Court in its decision in Communications Commission of Kenya & 5 others vs Royal Media Services Limited & 5 others [2014] eKLR held that:“Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru v. Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such a principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement.” 44.The appellants’ petition invoked a wide range of constitutional provisions. In particular, it cited Articles 22(1), 23, 27, 35, 40, 47, 48, 65 and 165 of the Constitution. These Articles were pleaded in support of the appellants’ claim based on the appellants’ alleged violations of their fundamental rights and freedoms, among them the right to property, fair administrative action and access to justice. 45.In so far as the alleged violations were concerned, it was pleaded in the Petition that the appellants were registered proprietors of lands Parcel No. Kajiado/Kaputiei-North/3282 and Kajiado/Kaputiei– North/3283. It was alleged that the 3rd respondent sold the same in an auction without obtaining the necessary consent from the Land Control Board. The Petition further alleged that the subdivision and further registration of the same to the 4th respondents were granted in violation of the appellants’ constitutional rights. These acts were described as amounting to a violation of property rights. While the appellants set out specific articles of the Constitution that they alleged to have been violated, the manner in which each of those articles was violated so as to justify a constitutional remedy was not set out with clarity, and instead was left to conjecture and assumption. The linkage between the provisions of the Constitution alleged by the appellants to have been violated and the factual manifestation of those contraventions or infringements, as explained by the Supreme Court, was manifestly missing. 46.In addition, the prayers sought were extensive and far-reaching.They included declarations that the appellants’ constitutional rights had been violated; declarations that the appellants were entitled to be registered as owners of the suit parcel; declarations nullifying titles, and other legal instruments held by the respondents and orders compelling public officers to perform their constitutional mandates. Again, while these prayers were clearly set out, they were not anchored on precisely pleaded violations demonstrating how the factual allegations satisfied the constitutional standards required to justify such relief. 47.Furthermore, it was not clear how the exercise by the respondent of its statutory power of sale, following the appellants’ failure to service the loan could amount to a violation of their right to own property, or how it violated any of the other provisions of the Constitution cited in the Petition. 48.Accordingly, the learned trial Judge was right in finding that the appellants failed to satisfy the threshold necessary for founding a constitutional petition, with the result that the appellants’ constitutional petition could not be adjudicated. We are satisfied that the learned trial Judge properly directed herself on the applicable law and, in so doing, rightly dismissed the petition. Consequently, we have no reason to interfere with the trial Judge’s decision. 49.In sum, we find this appeal totally devoid of merit, and we dismiss it with costs to the 3rd and 4th respondents. It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 15TH DAY OF MAY 2026.W. KARANJA……………………………JUDGE OF APPEALK. M’INOTI……………………………JUDGE OF APPEALK. ACHODE……………………………JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.