https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3998

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT EMBU** **ELC PETITION NO. 1B OF 2021** **(FORMERLY HIGH COURT PETITION NO. E004 OF 2021)** **PATRICK MUSAU NTHIANI.....................................................PETITIONER** **VERSUS** **ATHI RIVER DEVELOPMENT AUTHORITY.....................1ST RESPONDENT** **HON. ATTORNEY GENERAL........................................2ND RESPONDENT** **THE LAND REGISTRAR.................................................3RD RESPONDENT** **REGIONAL POLICE COMMANDANT, CENTRAL REGION………….4TH RESPONDENT** **JUDGMENT** The Petitioner commenced these proceedings through an Amended Petition dated 25th February 2024 seeking, inter alia, declarations that the judgment of this Court delivered on 12th March 2020 in *Embu ELC Case No. 148 of 2017, Tana & Athi Rivers Development Authority v Joseph Muli Mukuluta & 26 Others* violated Articles 20 and 50 of the Constitution; an order directing this Court to review the said judgment; an order compelling the 1st and 2nd Respondents to compensate all residents occupying the Masinga Dam Buffer Zone after valuation of their properties; and an order directing the 1st Respondent to comply with Article 11 of the International Covenant on Economic, Social and Cultural Rights relating to forced evictions. The Petition is opposed. The 2nd Respondent raised a Preliminary Objection dated 19th May 2021 contending that this Court lacks jurisdiction; that it is functus officio following the judgment delivered on 12th March 2020; that the Petition is barred by the doctrines of res judicata and abuse of the court process; and that the Court cannot sit on appeal over its own judgment. The 1st Respondent equally filed Grounds of Opposition dated 13th June 2025 raising substantially similar objections and contending that the Petitioners have failed to demonstrate violation of any constitutional rights with the precision required in constitutional litigation. By consent, the Petition was disposed of by way of written submissions which this Court has carefully considered together with the pleadings and authorities cited. The issues falling for determination are: 1. Whether this Court has jurisdiction to entertain the Petition. 2. Whether the Petition is barred by the doctrines of res judicata and functus officio. 3. Whether the Petitioner has established any violation of constitutional rights warranting the reliefs sought. 4. What orders should issue. The starting point is jurisdiction. It is now settled law that jurisdiction is everything and without it a court must down its tools. This principle was authoritatively stated in *Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd* [1989] KLR 1. Similarly, in *Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others* [2012] eKLR, the Supreme Court held that a court can only exercise jurisdiction donated by the Constitution or statute and cannot arrogate to itself jurisdiction exceeding that which is conferred by law. A careful reading of the Amended Petition leaves no doubt that the principal grievance is directed against the judgment of this Court delivered on 12th March 2020 in Embu ELC Case No. 148 of 2017. Indeed, the first substantive prayer seeks a declaration that the said judgment contravened Articles 20 and 50 of the Constitution, while the second prayer seeks an order directing this Court to review that judgment. The remaining prayers for compensation and compliance with international obligations arise directly from the consequences of the implementation of that judgment. The record shows, and it is not disputed, that Embu ELC Case No. 148 of 2017 was heard and determined by a court of competent jurisdiction which conclusively determined the ownership, use and occupation of L.R. Nos. 24670, 28671 and 12621 constituting the Masinga Dam Buffer Zone. A decree was subsequently issued and executed. Section 7 of the Civil Procedure Act codifies the doctrine of res judicata. The Supreme Court in *Kenya Commercial Bank Ltd v Benjoh Amalgamated Ltd & Another* [2017] eKLR reaffirmed that the doctrine serves the important public policy of bringing litigation to an end and preventing parties from reopening matters that have been conclusively determined by courts of competent jurisdiction. Likewise, in *Independent Electoral and Boundaries Commission v Maina Kiai & 5 Others* [2017] eKLR, the Court of Appeal restated that once the ingredients of res judicata are established, the subsequent suit is barred. Although the Petitioner contends that he was not a named party in ELC Case No. 148 of 2017, the substance of the present Petition demonstrates that he seeks to challenge findings already made regarding occupation of the suit properties and to obtain orders inconsistent with the earlier judgment. The law is settled that parties cannot evade the doctrine of res judicata by merely changing the form of proceedings or introducing constitutional language where the substance of the dispute remains the same. The Supreme Court in *John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport & Infrastructure & 3 Others* [2021] eKLR emphasized that constitutional litigation is equally subject to the doctrine of res judicata where the issues raised have previously been conclusively determined. The Court further notes that the judgment sought to be impugned remains valid, has not been set aside, varied or overturned on appeal. If the Petitioner was dissatisfied with that decision or believed that it affected persons who were not parties to the proceedings, the law provided appropriate remedies including an application for joinder before determination of the suit, review where the legal requirements were met, or an appeal to the Court of Appeal. A fresh constitutional petition inviting this Court to declare its own judgment unconstitutional is not one of those remedies. Equally applicable is the doctrine of functus officio. Once a court has conclusively determined a dispute and perfected its judgment, it becomes functus officio except in circumstances expressly permitted by law. The Supreme Court in *Raila Odinga & 2 Others v Independent Electoral and Boundaries Commission & 3 Others* [2013] eKLR recognized that the doctrine prevents a court from revisiting a final decision except where the law expressly permits. The Court of Appeal in *Telkom Kenya Limited v John Ochanda (Suing on his own behalf and on behalf of 996 Former Employees of Telkom Kenya Limited)* [2014] eKLR similarly held that the doctrine is intended to give finality to judicial decisions. The prayer inviting this Court to direct itself to review the judgment delivered on 12th March 2020 is therefore legally untenable. The Court cannot sit on appeal over its own judgment nor reopen issues already conclusively determined through a constitutional petition. The Petitioner has also alleged violation of Articles 20, 43 and 50 of the Constitution. It is trite that constitutional petitions must be pleaded with reasonable precision. In *Anarita Karimi Njeru v Republic* [1979] KLR 154 and later affirmed by the Court of Appeal in *Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others* [2013] eKLR, the courts held that a petitioner must identify the constitutional provisions allegedly violated, the manner of violation and the relief sought. While the Petitioner has cited several constitutional provisions and international instruments concerning forced evictions and the right to housing, those arguments cannot be considered in isolation from the earlier judgment. The Court appreciates that the Constitution protects the rights to dignity, fair hearing and accessible and adequate housing under Articles 28, 43 and 50. Equally, Kenya has obligations under international human rights instruments, including the International Covenant on Economic, Social and Cultural Rights, regarding humane treatment during evictions. However, those rights do not authorize a court to reopen concluded litigation or ignore valid court decrees issued after due process. Constitutional rights must be balanced with the equally protected right to property under Article 40 of the Constitution and the constitutional principle of finality in litigation. The Petitioner has not demonstrated that the Respondents acted outside the authority of a lawful decree or that the implementation of the judgment was undertaken contrary to any subsequent order of a competent court. More fundamentally, the Petition does not disclose an independent constitutional violation separate from matters already adjudicated in ELC Case No. 148 of 2017. What emerges is an attempt to revisit the merits of that judgment through a constitutional petition. Having found that the Petition is barred by the doctrines of res judicata and functus officio, this Court lacks jurisdiction to interrogate the merits of the impugned judgment or grant the substantive reliefs sought. Accordingly, the Court makes the following orders: 1. The Amended Petition dated 25th February 2024 is hereby found to be barred by the doctrines of **res judicata** and **functus officio**. 2. This Court lacks jurisdiction to reopen, review or pronounce itself on the constitutional validity of its judgment delivered on 12th March 2020 in Embu ELC Case No. 148 of 2017. 3. The Amended Petition is hereby dismissed. 4. Considering the public interest dimensions raised concerning the affected residents and the constitutional issues advanced, each party shall bear its own costs. It is so ordered. **DATED, DELIVERED AND SIGNED AT EMBU THIS 30TH DAY OF JUNE, 2026.** **HON. E.C CHERONO** **ELC JUDGE, EMBU** In the presence of; 1. Mr. Muriithi H/B for Mr. Kiongo for the 2nd and 3rd Respondents 2. Mr. Mwathe for the 1st Respondent 3. Petitioners/Advocate-absent 4. Ruth C/A