https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3205

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **ELC LC PETITION NO. E085 OF 2025** **SIMON KARANJA MAINA …………………............…1ST PETITIONER** **BONIFACE K. LURARE …………………..….…....…..2ND PETITIONER** **JANE N. MUSE ……………………………………….....…3RD PETITIONER** **SAMUEL NJUE ……………………………...….…........ 4TH PETITIONER** **ELIUD KIPYEGO CHEPKWONY ……………….......5TH PETITIONER** **VERSUS** **GULF LINK ENTERPRISE LTD ………...........……1ST RESPONDENT** **DIRECTOR OF SURVEYS OF KENYA ....……......2ND RESPONDENT** **CHIEF LAND REGISTRAR ………….……………..3RD RESPONDENT NATIONAL LAND COMMISSION …….....……….4TH RESPONDENT** **AINU SHAMSI LIMITED ……….............……….…5TH RESPONDENT** **JOHN NYALE NDUKE …………..............…………6TH RESPONDENT** **RULING** 1. Before this court for determination is the 1st Respondent’s notice of preliminary objection dated 1st January, 2026, objecting to the present petition on the following grounds that: 2. ***That the Petition is not amenable to determination as a Constitutional Petition*** ***a. From paragraphs 1–20 (background and factual narrative) and the substantive prayers (1) – (13), the Petition discloses a purely private civil dispute concerning competing claims of ownership; possession, access, and use of private land between private individuals and a private company.*** ***b. The Petition therefore offends the doctrine of constitutional avoidance, in that the matters complained of were fully amenable to determination under ordinary land and civil law and fell squarely within the exclusive jurisdiction of the Environment and Land Court under Article 162(2)(b).*** ***c. The Court lacks jurisdiction to entertain a constitutional petition whose substance is a private land dispute dressed up in constitutional disguise.*** 1. ***That the Petition is a collateral attack on the dismissal of ELC Case No. E271 of 2022.*** ***a. The Petition is an express collateral attack on the dismissal of the ELC Case No. E271 of 2022, and the Petitioners have been guilty of material non-disclosure in as much as they have concealed the existence of ELC Case No. E271 of 2022; they have concealed the fact of its dismissal; they have concealed the fact that the Petitioners’ grievance arising from that dismissal; they have further concealed the fact that they have lodged an appeal against the said dismissal of their suit in the Court of Appeal of Kenya; they have also concealed the fact that they have already filed and served the Record of Appeal in that Appeal.*** ***b. The Petition’s allegations of violation of Articles 48, 50, and 159 are premised entirely on the dismissal of the ELC suit pursuant to self-executing consent orders and the Court’s refusal to reinstate the suit.*** ***c. The Petition is therefore a direct collateral attack on a valid decision of a court of equal status, which this Honourable Court has no jurisdiction to review, vary, or set aside.*** 1. ***The doctrine of res judicata and constructive res judicata applies.*** ***a. All the issues raised in the Petition and the declaratory and injunctive prayers sought, are substantially similar to, arise from, or are directly connected to the issues that were in issue, or ought to have been raised in ELC Case No. E271 of 2022.*** ***b. The addition of new Petitioners does not defeat res judicata, as the subject matter is identical; the claims are derivative; and no independent constitutional injury distinct from the dismissed suit is pleaded.*** ***c. The Petition is barred by Section 7 of the Civil Procedure Act and the doctrine of constructive res judicata.*** 1. ***That as a result, the Petition is res Judicata and barred by the doctrine of cause of action estoppel.*** ***a. The Petition, in substance, seeks a declaration as to the rightful ownership and validity of title to Land Parcel No. L.R. 209/12040, and seeks to impeach the 1st Respondent’s title thereto.*** ***b. Yet the same issue of ownership and validity of title to the same parcel of land was the direct and substantial subject matter of ELCC No. E271 of 2022 Eliud K. Chepkwony & Samuel Patrick Njue Versus Gulflink Enterprises Limited, in which the 4th and 5th Petitioners herein were the Plaintiffs.*** ***c. That suit was finally determined by this Honourable Court (Hon. Justice Oguttu Mboya) on 31st October 2023, wherein the Plaintiffs’ suit was dismissed with costs for non-compliance with court orders.*** ***d. The issues raised in the present constitutional petition arise from, are directly connected to, and are substantially similar to those litigated and conclusively determined in ELC Case No. E271 of 2022, which suit was lawfully dismissed for non-compliance with court orders.*** ***e. The Petitioners are impermissibly seeking to re-litigate matters which were either directly in issue, or ought to have been raised in the said Environment and Land Court proceedings.*** ***f. The addition of new parties and the invocation of constitutional provisions do not defeat the doctrine of res judicata, the bar attaching to the subject matter and issues, not the form of pleadings.*** ***g. The parties, the subject matter, and the cause of action are identical. The Petitioners are therefore barred by Section 7 of the Civil Procedure Act and the doctrine of res judicata from re-litigating the same dispute under the guise of a constitutional petition.*** 1. ***The Petition is incompetent for want of a constitutional cause of Action. The Petition discloses no constitutional question and offends the doctrine of constitutional avoidance in that:*** ***a. The dispute concerns ownership and proprietary interests over private land between private citizens.*** ***b. The 2nd, 3rd and 4th Respondents have been roped into the matter as a cover and excuse to justify the dressing up of a private dispute as to Title as a constitutional petition.*** ***c. The matters complained of were fully amenable to determination under ordinary civil and land law.*** ***d. The Petition merely constitutionalizes a dismissed civil suit and seeks to circumvent procedural consequences lawfully imposed by the Environment and Land Court.*** ***e. Accordingly, the Petition is not amenable to determination as a constitutional petition and ought to be struck out for want of jurisdiction.*** 1. ***The Petition is misconceived as it seeks to use constitutional jurisdiction to relitigate a settled civil dispute;*** ***a. The Petition, though artfully framed in terms of Articles 40, 47 and 50 of the Constitution, discloses no genuine, distinct constitutional cause of action.*** ***b. The grievances raised and framed as fraud, unlawful subdivisions, and irregular titling, are ordinary alleged civil wrongs that were amenable to, and were in fact, pursued in the earlier civil suit for what it truly was, a private land dispute between private citizens.*** ***c. The constitutional jurisdiction of this Court cannot be invoked as an appellate or alternative route to challenge the outcome of a concluded civil suit, especially where the petitioners have already lodged an appeal.*** ***d. To allow this Petition would be to permit the subversion of the hierarchy of courts and the abuse of constitutional remedies, contrary to the law.*** 1. ***That the Petition constitutes a gross abuse of court process and amounts to forum shopping on the part of the Petitioners;*** ***a. The 4th and 5th Petitioners, being aggrieved by the dismissal of their suit in ELCC No. E271 of 2022, have already invoked the appellate jurisdiction by filing a Notice of Appeal and Record of Appeal in the Court of Appeal of Kenya, being known as Civil Appeal No. E097 OF 2024 Eliud K. Chepkwony and Samuel Patrick Njue Vs Gulflink Enterprises Limited.*** ***b. While that appeal is sub judice and pending determination, the said Petitioners have colluded with others to file this fresh Constitutional Petition over the same substratum dispute.*** ***c. This conduct amounts to forum shopping and a blatant abuse of the court process, aimed at circumventing the finality of the earlier judgment and harassing the 1st Respondent through parallel proceedings.*** ***d. The filing of a constitutional petition contemporaneously with a pending appeal amounts to forum shopping, multiplicity of proceedings, and a collateral attack on valid court orders and a calculated move to undermine the authority and finality of court decisions.*** ***e. A party cannot be allowed to pursue two separate judicial avenues over the same grievance simultaneously. This offends the principle of finality of litigation and constitutes an abuse recognized under Rule 11 of the Mutunga Rules and the inherent jurisdiction of this Court.*** 1. ***That the Court lacks jurisdiction;*** ***a. This Honourable Court lacks jurisdiction to entertain the Petition as it seeks to review; vary; set aside; or sit on appeal over a decision of a court of equal status, contrary to Article 165 of the Constitution.*** ***b. The issues raised fall squarely within the appellate jurisdiction of the Court of Appeal, which has already been properly invoked by the Petitioners.*** 1. ***The Court is functus officio;*** ***a. The Environment and Land Court conclusively determined the matter, including the effect of the parties’ consent orders and the automatic dismissal of the suit.*** ***b. The Petition is an indirect attempt to reopen issues that have attained finality, contrary to the doctrine of functus officio and the principle of finality of litigation.*** 1. ***The Petition is an abuse of the court process due to a pending appeal;*** ***a. The Petitioners have already lodged a Notice of Appeal, and a Record of Appeal challenging the dismissal of ELC Case No. E271 of 2022.*** ***b. The filing of the present Petition while an appeal is pending constitutes forum shopping; multiplicity of proceedings; and an abuse of court process.*** ***c. Once appellate jurisdiction has been invoked, this and any other Court must down its tools.*** 1. ***Misapplication of Article 40 of the Constitution. The reliance on Article 40 of the Constitution by the Petitioner is fatally misconceived, as:*** ***a. Article 40 protects against arbitrary deprivation of property by the State.*** ***b. the Respondent is a private entity; and*** ***c. competing claims of title between private parties are not constitutional questions.*** ***d. Article 40 cannot be invoked as a substitute for proof of title or to revive a dismissed land claim.*** 1. ***Failure to Meet the Anarita Karimi / Mumo Matemu Precision Test. The Petition fails to plead with reasonable precision:*** ***a. the specific constitutional rights violated;*** ***b. the specific acts complained of; and*** ***c. how those acts amount to constitutional violations. The Petition merely cites constitutional provisions in bulk and seeks substantive land remedies, rendering it incompetent.*** 1. ***The Petition is therefore vexatious, oppressive, and calculated to undermine the authority and finality of court decisions and amounts to an abuse of the court process in as much as the Petition is patently not brought bona fide but as a strategic maneuver to evade the consequences of the dismissal in ELCC No. E271 of 2022.*** 2. The objection was canvassed by way of written submissions. **Submissions** 1. In support of the objection, the 1st Respondent filed submissions on 1st January, 2026. Counsel submitted that the preliminary objection raises pure points of law within the meaning of ***Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd [1969] EA 696.*** Counsel argued that the objection concerns issues of jurisdiction, res judicata, sub judice, constitutional avoidance, abuse of process and the propriety of invoking constitutional jurisdiction in what is essentially a private land dispute. 2. It was urged that the petition does not disclose a proper constitutional cause of action and offends the doctrine of constitutional avoidance. Reliance was placed on ***Communications Commission of Kenya & 5 Others vs Royal Media Services Ltd & 5 Others [2014] eKLR*** where the Supreme Court affirmed that courts should not entertain constitutional issues where a matter can adequately be resolved through ordinary legal mechanisms. 3. When read holistically, it was stated, the petition concerns ownership, possession, title, access to and control of private land, matters which properly fall within ordinary land law and civil procedure mechanisms. 4. It was further submitted that the dispute is purely between private parties asserting competing proprietary interests over private land. Counsel pointed out that the 1st Respondent is a private company while the Petitioners are private individuals, and contended that no genuine exercise of public power or state action had been pleaded. In support, counsel cited ***John Harun Mwau vs Peter Gastrow & 3 Others (2014) eKLR***. 5. On **Article 40** of the **Constitution**, counsel submitted that the Petitioners have misconceived the scope of the right to property and that **Article 40** protects against arbitrary deprivation of property by the State and does not replace the statutory framework governing proof of title. It was urged that the Petitioners are improperly attempting to invoke **Article 40.** Cited in support was ***Patrick Musimba vs National Land Commission & 4 Others [2016]eKLR.*** 6. Counsel further submitted that the petition is barred by the doctrine of *res judicata* under **Section 7** of the **Civil Procedure Act**. Reliance was placed on ***Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR,*** where the Supreme Court underscored the public interest in the finality of litigation and cautioned against parties re-litigating disputes that have already been conclusively determined by a court of competent jurisdiction. 7. The present petition, it was submitted, arises from the same subject matter that was previously in issue in **ELCC No. E271 of 2022, Eliud K. Chepkwony & Samuel Patrick Njue versus Gulflink Enterprises Limited**, and that the Petitioners are merely reintroducing similar grievances under the guise of a constitutional petition. 8. Citing ***Uhuru Highway Development Ltd vs Central Bank of Kenya[1996] eKLR*** and ***John Florence Maritime Services Ltd & another vs Cabinet Secretary for Transport & Infrastructure & 3 others [2023]eKLR***, counsel urged that the Petitioners cannot defeat the doctrine of res judicata merely by introducing constitutional provisions or adding new parties. 9. On functus officio, counsel submitted that the Environment and Land Court had already enforced the parties’ consent orders, confirmed the automatic dismissal of the earlier suit, and declined reinstatement. Reliance was placed on ***Raila Odinga & 2 Others vs IEBC & 3 Others [2013]eKLR*** and ***Telkom Kenya Ltd v John Ochanda & 999 Others [2014]eKLR*** for the principle that once a court renders a final decision, it lacks jurisdiction to revisit the merits except through review or appeal. 10. Counsel further submitted that the petition constitutes an abuse of process because the Petitioners had already lodged a notice of appeal and record of appeal against the dismissal in **ELCC No. E271 OF 2022** **Eliud K. Chepkwony & Samuel Patrick Njue Versus Gulflink Enterprises Limited**. Reliance was placed on ***Owners of the Motor Vessel “Lillian S” vs Caltex Oil (Kenya) Ltd [1989] KLR 1*,** for the proposition that jurisdiction is everything. 11. Once the appellate jurisdiction has been invoked, all grievances relating to the dismissal ought to be pursued before the Court of Appeal, and that the filing of a constitutional petition in parallel amounted to forum shopping, multiplicity of suits and abuse of process. 12. On the adequacy of the pleadings, counsel submitted that the petition fails the precision threshold set out in ***Anarita Karimi Njeru vs Republic [1979] eKLR***, and reaffirmed in ***Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR***. It was urged that the petition merely lists constitutional provisions without identifying actionable constitutional violations, attributing them to constitutionally cognizable conduct, or demonstrating any independent constitutional injury. 13. It was further argued that the petition constitutes an abuse of the court process. Reliance was placed on the decision in ***Satya Bhama Gandhi vs Director of Public Prosecutions & 3 others [2018] eKLR*** for the proposition that abuse of process arises where court proceedings are employed for purposes significantly different from their proper and legitimate function. 14. Counsel contended that the Petitioners were improperly invoking the constitutional jurisdiction of the court in an attempt to re-litigate issues arising from a dispute that had already been determined by the civil court, while at the same time pursuing an appeal against the very same decision. 15. Finally, counsel argued that this court lacks jurisdiction to entertain what is effectively an appeal disguised as a constitutional petition. It was submitted that the petition seeks, in substance, to challenge the validity and effect of consent orders and the dismissal in **ELCC No. E271 of 2022,** thereby inviting this court to sit on appeal over a court of equal status contrary to **Article 165(5)** and **(6)** of the **Constitution**. 16. The Hon Attorney General for the 2nd and 3rd Respondents filed submissions in support of the objection on 31st March, 2026. Counsel submitted that as expressed in ***Mukisa Biscuits Manufactering Co Ltd vs Westend Distributors(supra)***, a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of the pleadings and which if argued as a preliminary point may dispose of the suit. Also cited was ***Hassan Ali Joho & Anor vs Suleiman Said Shabhal & 2 others [2014]eKLR.*** 17. It was submitted that the petition offends the doctrine of constitutional avoidance and does not raise bonafide constitutional issues. As explained by the supreme court in ***Communications Commission of Kenya & 5 Others vs Royal Media Services Limited & 5 others [2014]eKLR*** the principle of avoidance entails that a court will not determine a constitutional issue when a matter may be properly decided on another basis. 18. Also referenced was among others ***Fredricks & Others vs MEC for Education and Training, Eastern Cape & Others [2002] 23 ILJ 81 (CC)*** and ***Francis Gathungu Waithaka vs Kenyatta University (2012)eKLR*** and ***CNM vs WMG[2018]eKLR.*** 19. As a consequence, it was noted, this court has no jurisdiction to entertain the petition. Reliance was placed on the case of ***Phoenix of E.A Assurance Company vs Simeon Muruchi Thiga t/a Newspaper Service[2019]eKLR*** and ***In the Matter of the Interim Independent Electoral Commission (Applicant) [2011] KESC 1 (KLR)*** and ***Kigwor Company Limited vs Samedy Trading Company Limited [2021]eKLR.*** 20. Similarly, it was argued that the petition does not meet the precision threshold established in ***Anarita Karimi Njeru vs Republic(supra)*** and subsequently reaffirmed in ***Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 others [2013] eKLR*** and that the courts in the aforesaid cases emphasized that constitutional petitions must be pleaded with a reasonable degree of precision by specifically identifying the constitutional provisions allegedly violated, the manner of violation, and the nexus between the impugned acts and the alleged constitutional injury. 21. Counsel urged that the petition is a classic case of abuse of the process of the court as discussed in ***Satya Bhama Gandhi vs Director of Public Prosecutions and 3 others[2018]eKLR*** where the court explained that situations that give rise to abuse of process are exhaustive and involve situations where the process of the court has not been resorted to fairly, properly, honestly to the detriment of the other party. 22. Counsel also pointed to ***Sarak vs Kotoye(1992) 9 NWLR 9pt 264, Rutongot Farm Ltd vs Kenya Forest Service & 3 others[2018]KESC 27 (KLR),* and *Muchanga Investments Limited vs Safari Unlimited (Africa) Ltd and 2 others KECA 453*** in this regard. 23. It was submitted that the Petitioners are guilty of non-disclosure as regards **ELC Case No. E271 of 2022** and as held in ***Kilima Limited & Anor vs Samuel Ruto-Chairman & 21 others; Carewell Farmers Company Limited & Anor[2021]eKLR***, parties should not take advantage of the absence of the other party because when they finally come, the truth will always come out. 24. Counsel further submitted that the present proceedings offend the doctrine of functus officio, arguing that the court cannot revisit issues upon which it has already rendered a final determination. Reliance was placed on ***Telkom Kenya Ltd vs John Ochanda (suing on his own behalf and on behalf of 996 former employees of Telkom Kenya Ltd) [2014] eKLR***, where the court explained that the doctrine bars the reopening of matters once a court has pronounced itself conclusively. 25. It was submitted that the petition is equally barred by the doctrine of estoppel under **Section 120** of the **Evidence Act**, which precludes a party from asserting a position inconsistent with one previously taken. In support of that proposition, counsel relied on ***Ganges Manufacturing Co vs Sourujmull (1880) ILR 5 Cal 669.*** 26. Counsel further submitted that the petition is barred by the doctrine of res judicata under **Section 7** of the **Civil Procedure Act.** Reliance was placed on ***Njue Ngai vs Ephantus Njiru Ngai & another [2016] eKLR*** and ***Co-operative Bank of Kenya Ltd vs Cosmos Mrobo [2018] eKLR*** for the proposition that dismissal of a suit for non-attendance or want of prosecution amounts to a judgment capable of triggering the doctrine of res judicata. 27. Counsel also cited ***John Florence Maritime Services Ltd & another vs Cabinet Secretary for Transport and Infrastructure & 3 others [2015] eKLR*** and ***Kenya Commercial Bank Ltd vs Muiri Coffee Estate Ltd & another [2016] eKLR*** on the principles underpinning the doctrine. 28. It was further argued that **Nairobi ELC E271 of 2022** was dismissed pursuant to a consent adopted by the court and that the process of adoption necessarily involved judicial evaluation and approval of the terms of the consent, as recognized by the Supreme Court in ***Asanyo & 3 Others vs Attorney General [2020] KESC 62 (KLR).*** Ultimately, it was urged, the petition is for dismissal. 29. The Petitioner filed submissions in opposition to the preliminary objection on 30th March, 2026. Counsel submitted that the objection does not raise pure points of law. It was submitted that the 1st Respondent is inviting the court to determine contested matters of fact, including whether the petition amounts to a collateral attack on **ELC No. E271 of 2022**, whether the issues and parties are the same, whether there was material non-disclosure, whether the Petitioners were forum shopping, and whether the petition is vexatious or oppressive. 30. Counsel maintained that the objection could only succeed if the court went beyond the pleadings and examined disputed facts arising from previous proceedings and pending appeals, contrary to the principle in ***Mukisa Biscuit Manufacturing Co Ltd vs West End Distributors Ltd [1969] EA 696.*** 31. On the competence of the petition, counsel submitted that the objection mischaracterized the dispute as a purely private civil claim dressed up as a constitutional petition. Counsel argued that **Article 22** expressly permits any person to institute proceedings where a right in the bill of rights has been denied, violated, infringed or threatened, and that **Article 40** protects property rights. Counsel further submitted that **Article 40(2)** is not confined to state action, as it prohibits arbitrary deprivation by the State or any person. 32. The petition, it was stated,pleads more than a private contest over title; that it joined the Director of Surveys, the Chief Land Registrar and the National Land Commission, and alleged irregularities in survey, deed planning, registration and land administration. Counsel submitted that official correspondence from those public bodies raised questions on the subdivision of L.R. No. 209/12040, the registration status of the land, the authenticity of the deed plan, and the legality of derivative titles. This factual matrix cannot be reduced to a simple trespass or possession dispute. 33. It was submitted that the petition discloses a clear constitutional cause of action and meets the precision test in ***Anarita Karimi Njeru****(****supra)*** and ***Mumo Matemu(supra);*** that it identifies the parties, factual background, official correspondence, constitutional and statutory provisions relied upon, alleged violations, and reliefs sought, thereby satisfying **Rule 10** of the **Mutunga Rules**. Counsel emphasized that precision does not require rigid formalism, and that the Mutunga Rules are facilitative in nature. 34. On **Article 40**, counsel submitted that the Petitioners do not contend that a letter of allotment by itself constituted title. **Rather, their case is that the 1st Respondent’s title was impugned for want of a lawful allotment process and for having arisen from irregular surveying, deed planning**, subdivision, amalgamation and registration processes. 35. Relying on ***Torino Enterprises Limited vs Attorney General [2023] KESC 79 (KLR),*** counsel submitted that the true issue is whether a title alleged to lack a lawful root can enjoy constitutional protection especially in light of **Article 40(6)** and **Section 26** of the **Land Registration Act.** 36. On res judicata, collateral attack, functus officio and abuse of process, counsel submitted that those grounds were fact-sensitive and could not be determined as preliminary objections. Counsel argued that the court would first need to examine the pleadings, parties, orders and procedural history in **ELC No. E271 of 2022** and compare them with the present petition. Counsel added that the former suit was dismissed for failure to deposit security for costs and was not heard and determined on the merits of title, fraud, allotment, deed plans, subdivisions or amalgamations. 37. Counsel further submitted that the present 1st, 2nd and 3rd Petitioners were not parties to **ELC No. E271 of 2022**, while only the present 4th and 5th Petitioners were parties and are appellants in the pending appeal. Counsel argued that this raises questions of identity of parties, privity and sameness of title which could not be summarily determined. 38. On jurisdiction, counsel submitted that the objection is self-defeating because **Article 162(2)(b)** of the **Constitution** and **Section 13** of the **Environment and Land Court Act** confers upon this court jurisdiction over disputes relating to title, tenure, land administration, management and use of land. Counsel argued that the fact that the petition invoked **Articles 40, 47** and **50** did not oust this court’s jurisdiction, but instead reinforced its duty to determine the constitutional grievances arising within a land dispute. 39. It was urged that the objection is misconceived and for dismissal. **Analysis and Determination** 1. Having considered the pleadings, the issues that arise for determination are whether the Preliminary Objection is competent and if so, merited. The law with respect to preliminary objections is now well settled. Law JA in ***Mukisa Biscuits Manufacturing Co. Ltd. vs. West End Distributors (1969) EA 696******at 700*** stated that: ***“…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. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”*** 1. **Newbold, P** further held: ***“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. The improper raising of points by way of Preliminary Objection does nothing butt unnecessarily increases costs and, on occasion, confuse the issues. This improper practice should stop.”*** 1. The Supreme Court in the case of ***Hassan Ali Joho & Another vs Suleiman Said Shahbal & 2 Others [2014] eKLR*** re-affirmed the principles as set out in the ***Mukhisa Case(supra)*** stating: ***“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. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration … 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. It is apparent from the foregoing that a preliminary objection should raise pure points of law, argued on the assumption that all facts pleaded by the other side are correct. However, it cannot be raised if any facts have to be ascertained from elsewhere or if the court is called upon to exercise judicial discretion. Further, it should be capable of disposing off the suit. 2. The 1st Respondent has raised an extensive preliminary objection. In essence, however, the objection is that the petition is barred by the doctrines of res judicata, constructive res judicata and issue estoppel; offends the doctrine of constitutional avoidance; fails to meet the precision threshold set out in ***Anarita Karimi Njeru vs Republic [1979] eKLR;*** constitutes a collateral attack on the dismissal of ELCC No. E271 of 2022 and the pending appeal arising therefrom; and that this court is functus officio and lacks jurisdiction in light of the earlier proceedings and the pendency of the appeal before the Court of Appeal. 3. The court will begin with the objections founded on the doctrines of constitutional avoidance and the Anarita Karimi principle. The doctrine of constitutional avoidance is a judicial principle that discourages courts from deciding constitutional issues when a matter can be resolved through statutory or ordinary legal mechanisms. The Supreme Court in ***Communications Commission of Kenya & 5 others vs Royal Media Services Ltd & 5 others [2014] eKLR*** expounded on this thus: ***“The principle of constitutional avoidance entails that a court will not determine a constitutional issue when a matter may properly be decided on another basis. It is a sound judicial practice for courts to decide cases on non-constitutional grounds if that courseisavailable. Likewise, in Speaker of the NationalAssembly v James Njenga Karume [1992] eKLR, the Court of Appeal stated that where a clear procedure is prescribed by law for redress of a grievance, that procedure must be strictly followed before resorting to constitutional remedies.”*** 1. On the other hand, the principle established in ***Anarita Karimi Njeru vs Republic(supra)*** is that a constitutional petition must be pleaded with a reasonable degree of precision. A petitioner is required to clearly set out the nature of the complaint, identify the specific constitutional provisions alleged to have been infringed, and demonstrate the manner in which those provisions have allegedly been violated. 2. In determining whether breaches of the doctrines have been occasioned, the court is only required to examine the petition, the reliefs sought, the constitutional provisions invoked, and the substance of the grievances pleaded. To that extent, those objections properly fall within the scope of a preliminary objection. 3. Moving next to the assertions of res judicata and functus officio. The substantive law on *res judicata* is found in **Section 7** of the **Civil Procedure Act,** **Cap 21** which provides that: ***“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* prohibits a court from re-litigating matters that have been conclusively determined between the same parties, or those claiming under them, by a court of competent jurisdiction. 2. Intricately tied to this is the concept of functus officio. The Black's Law Dictionary, 9th Edition defines functus officio as: ***“[having performed his or her office] (of an officer or official body) without further authority or legal competence because the duties and functions of the original commission have been fully accomplished.”*** 1. In ***Odinga vs Independent Electoral & Boundaries Commission & 3 others (Petition 5, 4 & 3 of 2013) [2013] KESC 8 (KLR) (Civ) (24 October 2013) (Ruling),*** the Supreme Court while expounding on the doctrine cited an excerpt from an article by Daniel Malan Pretorius, in **“The Origins of the functus officio Doctrine, with Specific Reference to its Application in Administrative Law,” [2005] 122 SALJ 832** that: *“****The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter.… The [principle] is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be revoked or varied by the decision-maker.”*** 1. The doctrines of functus officio and res judicata ordinarily raise jurisdictional questions capable of determination at a preliminary stage where the material facts are uncontested and can be ascertained from the pleadings without recourse to evidence. 2. This court has gone through the entire file in **ELC No. 272 of 2022, Eliud kipyego chepkwony and Samuel Njue Vs Gulf Link Enterprise Limited**, which is available on the CTS. The Plaintiffs in that suit are the 4th and 5th Petitioners herein, while the 1st Respondent herein is the only Defendant in the said suit. 3. In ELC No. 272 of 2022, the current 4th and 5th Petitioners, who were Plaintiffs, alleged that they are the bona fide owners of LR No. 209/12040 measuring 2.996 ha. According to the said Plaintiffs, the Defendant, who is the 1st Respondent herein, fraudulently obtained titles for LR Nos 209/20626 and 209/16880, which is the same land on the ground as LR No. 209/12040. 4. In the said suit, the Plaintiffs sought for the cancellation of the Defendant’s title, and for a declaration that they are the lawful proprietors of the suit property. The Plaintiffs also sought for damages and mesne profits of Kshs 1,000,000 per month from 1st January, 2000 until the date when vacant possession will be given. 5. The Defendant in the earlier suit, who is the 1st Respondent herein, filed a Defence and Counter claim as against the Plaintiffs, in which he claimed to be the owner of the suit property. He sought for the cancellation of the Plaintiffs’ title on the ground that the same was acquired fraudulently, together with damages and costs. 6. The record of **ELC No. 272 of 2022** shows thatthe Court issued orders for security for costs on 3rd July 2023 requiring the Plaintiffs to deposit Kshs 20,000,000 within 60 days, that is by 1st September 2023, failure to which the suit would stand dismissed. The Plaintiffs filed an application for extension of time dated 30th August 2023 seeking extension to deposit the security for a further 60 days. As at 1st September 2023, the suit stood dismissed. 7. However, life was breathed into it by the consent of the 1st Plaintiff and the Defendant which was endorsed by the Court on 21st September 2023. The consent order of 21st September 2023 granted the 1st Plaintiff a further 30 days from 21st September 2023, that is by 21st October 2023, to deposit the sum of Kshs 20,000,000 failure to which the suit would stand dismissed. By 21st October 2023, the 1st Plaintiff had not complied with the Consent Order on the deposit of security. 8. Having considered the ruling delivered on 31st October 2023, it is noted that it principally dealt with the effect of a consent order relating to security for costs and whether the suit in ELC No. E271 of 2022 stood dismissed upon default of compliance with the consent terms. 9. The court therein considered the operation of the default clause in the consent, the binding nature of consent orders, and whether the court had become functus officio upon the occurrence of default. Ultimately, the court held that the suit stood dismissed by operation of the consent entered on 23rd October 2023. 10. Indeed, the court has perused the Notice of Appeal dated 7th December, 2023 against the order of dismissal. What this means is that the issue as to whether ELC Case number E271 of 2022 should be reinstated, and be heard on its merit is still alive in the court of appeal. Consequently, and considering that the Petition pertains to the same suit property, and the same cause of action, to wit, the lawful proprietor (s) of LR Nos 209/12040; 209/16880 and 209/20620, the filing of the Petition by some of the Petitioners who were Plaintiffs in ELC Case number E271 of 2022 is an abuse of court process. 11. I say so because what the Petitioners have done is to circumvent the earlier order of this court in the earlier suit on security for costs by adding new parties without any substantial change of the initial cause of action. To that extent, and in view of the pending appeal, the current Petition is a candidate for dismissal. 12. Indeed, notwithstanding that the Petition has additional parties, which removes it from the purview of it being res judicata, this court agrees with the Respondents’ submissions that the present Petition constitutes a collateral attack on the earlier suit and appeal, and this court is divested of jurisdiction on account of the pending appeal. 13. The principle of constitutional avoidance and exhaustion doctrine discourages the invocation of [the Constitution](https://new.kenyalaw.org/akn/ke/act/2010/constitution) to settle matters that can be adequately addressed through existing statutory, regulatory, or procedural frameworks. At its essence, it prevents parties from elevating ordinary legal issues into constitutional claims. [See ***Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014]eKLR].*** 14. The Petitioners’ case, in summary, is that they are the lawful proprietors of L.R. No. 209/12040 and that the suit property was subsequently subjected to fraudulent parallel titling, illegal subdivisions, amalgamations, and registration processes allegedly orchestrated by the 1st, 5th and 6th Respondents in collusion with public offices charged with land administration. 15. They rely on correspondence from the Director of Surveys, the Chief Land Registrar, the National Land Commission, and the Directorate of Criminal Investigations allegedly questioning the authenticity of deed plans, subdivisions and resultant titles. On that basis, they seek declarations that the impugned titles, subdivisions and amalgamations are fraudulent, null and void, together with orders for rectification of the land register, cancellation of titles, mandamus, prohibition, and damages for alleged violation of constitutional rights under **Articles 40, 47** and **50** of the **Constitution.** 16. A constitutional petition is intended principally for the enforcement of rights and interpretation of the Constitution. It is not designed to replace ordinary civil litigation where adequate statutory and procedural mechanisms already exist. Where a dispute turns on contested facts requiring viva voce evidence, cross-examination, authentication of documents, survey evidence, tracing of title, proof of ownership or competing proprietary rights, such suits are best suited for ordinary suits. 17. There is no doubt that all the aspects of the dispute herein revolve around questions ordinarily determinable under the statutory framework governing land administration and registration, including the legality of allotments, validity of deed plans, alleged fraud, rectification of the register, cancellation of titles, and the legality of subdivisions and amalgamations. 18. In those circumstances, and considering that the 4th and 5th Petitioners had in the earlier suit raised the same issues by way of an ordinary suit, this court is persuaded that the Petition was filed to circumvent the orders that had been issued in the earlier suit, and offends the doctrine of constitutional avoidance to the extent of rendering it incompetent. 19. Having found that the Petition is incompetent for being an abuse of the court process, and contravening the doctrine of constitutional avoidance, the court will not delve into the issue of whether the Petition, as framed, satisfies the precision threshold of specificity. 20. For those reasons, the 1st Respondent’s notice of preliminary objection dated 1st January, 2026 is allowed with costs. As a consequence, the Petition is dismissed with costs. **Dated, signed and delivered virtually in Nairobi this 28th day of May, 2026** **O. A. Angote** **Judge** **In the presence of;** Ms Munyoki for Mr. Mwangi Ndegwa for Petitioners Mr. Taib (SC) for the 1st Respondent Mr. Allan Kamau for the 2nd and 3rd Respondent Ms Mwanjika for the 4th Respondent Court Assistant: Tracy