[2023] KEELC 18840 (KLR)

Ochieng & 4 others (Suing on their own behalf and behalf of their Families and all the Members of the over 2000 Residents of Mukuru Kwa Njenga Residential Area) v Nairobi Metropolitan Service & 213 others; Economic and Social Rights Centre (HAKIJAMII) & 3 others (Interested Parties) (Petition E050 & E048 of 2021 (Consolidated)) [2023] KEELC 18840 (KLR) (29 May 2023) (Ruling)

Neutral citation: [2023] KEELC 18840 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Petition E050 & E048 of 2021 (Consolidated)

JO Mboya, J

May 29, 2023

IN THE MATTER OF: THE ENFORCEMENT OF FUNDAMENTAL RIGHTS AND FREEDOMS OF INDIVIDUALS UNDER THE BILL OF RIGHTS OF THE CONSTITITUIN OF KENYA. IN THE MATTER OF: ARTICLES 1, 2(5)(6), 3, 10, 20, 21, 22, 23, 27(4), 28, 35, 40, 43(1)(b) 47, 48, 60, 63, 64, 159, 165, 258, AND 259 OF THE CONSTITUTION OF KENYA. IN THE MATTER OF: RULES 3, 4, 1O, 13, 21 AND 23(1) OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE & PROCEDURE RULES, 2013. IN THE MATTER OF: THE LAND ACT 2012 AND THE REGULATIONS MADE THEREUNDER IN THE MATTER OF: THE FAIR ADMINISTRATIVE ACTION ACT, 2015 IN THE MATTER OF: THE PHYSICAL AND LAND USE PLANNING ACT, 2019 AND THE REGULATIONS MADE THEREUNDER IN THE MATTER OF: THE ENVIRONMENTAL MANAGEMENT AND CO- ORDINATION ACT, 1999 AND THE REGULATIONS THE REGULATIONS MADE THEREUNDER IN THE MATTER OF: THE URBAN AREAS AND CITIES ACT IN THE MATTER OF: THE ACCESS TO INFORMATION ACT IN THE MATTER OF: ARTICLE 25 OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR), ARTICLE 11 OF THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTRAL RIGHTS (IECSR), ARTICLE 17 OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS AND ARTICLE 18 OF THE AFRICAN CHARTER OF HUMAN AND PEOPLE RIGHTS (BANJUL CHARTER) IN THE MATTER OF: THE UNREASONABLE AND UNJUSTIFIABLE DEPRIVATION OF PROPERTY THROUGH UNJUST EVICTIONS

Between

Nelson Ochieng

1st Petitioner

Rose Anyango

2nd Petitioner

Christopher Otieno

3rd Petitioner

Joshua Muthegi

4th Petitioner

Mukuru Vumilia Community Based Organisation

5th Petitioner

Suing on their own behalf and behalf of their Families and all the Members of the over 2000 Residents of Mukuru Kwa Njenga Residential Area

and

The Nairobi Metropolitan Service

1st Respondent

County Government of Nairobi City County

2nd Respondent

The Ministry of Interior and Co-ordination of National Government

3rd Respondent

Kenya Urban Roads Authority

4th Respondent

Ministry of Lands and Physical Planning

5th Respondent

National Land Commission

6th Respondent

The Attorney General

7th Respondent

Orbit Chemical Industries Limited

8th Respondent

Dominic Njuguna Ndung’u

9th Respondent

Edith Vusha Uside

10th Respondent

Musyoka Matheka

11th Respondent

Josephat Angose Inziria

12th Respondent

Hossanah Prophetic & Miracle Church

13th Respondent

Gospel Furthering Bible Church

14th Respondent

Muli Mom

15th Respondent

Josephat Angose Inziria

16th Respondent

John Njuguna Njoki

17th Respondent

Aliow Golo Tache

18th Respondent

Wambua Mutisya

19th Respondent

Glorious Gospel Centre

20th Respondent

Teresia Nyaguthie Onyango

21st Respondent

Yusuf Guyo Tole

22nd Respondent

Thomas Okello Achola

23rd Respondent

Stephen Kamunge Wainaina

24th Respondent

Bernard Mungai

25th Respondent

Lucas Nyambegera Nyangwes

26th Respondent

Wilson Kamau Wambugu

27th Respondent

Teresa Mokeira Omwoyo

28th Respondent

John Njenga Wainaina

29th Respondent

Eliud Wanjoga Mucheru

30th Respondent

Franci Ngugi Mburu

31st Respondent

Francis Ngugi Mburu

32nd Respondent

Francis Nyaga Chabari

33rd Respondent

George Kimani Kagia

34th Respondent

Gerishom D K Njoroge

35th Respondent

Boniface Mwanzia Muindi

36th Respondent

Leonard Nyaoke Oriwo

37th Respondent

John Njuguna Chege

38th Respondent

Vincent Rariewa

39th Respondent

Jaqueline Githinji

40th Respondent

Justus Kinoti Mbijiwe

41st Respondent

Stephen Wambwa

42nd Respondent

Richard Nganvi Wamrwa

43rd Respondent

Edith Nyambura Kahiga

44th Respondent

Charles Mwangi Maina

45th Respondent

Francis Mwangi Muguro

46th Respondent

Wilson Kamau Wambugu

47th Respondent

Wilson Kamau Wambugu

48th Respondent

Celestine Langat

49th Respondent

Jacob Musee Mwanzia

50th Respondent

Mary Njeri Gathere

51st Respondent

Paul Mutui Masaka

52nd Respondent

Jacob Musee Mwanzia

53rd Respondent

Tabitha Nyakinyua Gathere

54th Respondent

Caroline Mukwamugo Wallace

55th Respondent

Joel Langat

56th Respondent

Muchiri Mugo

57th Respondent

Peter Kimani Waithaka

58th Respondent

John Njenga Wainaina

59th Respondent

Kisina Mutua

60th Respondent

Lucas Mbae Muthara

61st Respondent

Gerishom D K Njoroge

62nd Respondent

Mary Wanja Njoroge

63rd Respondent

Benard Githinji Karimi

64th Respondent

Andrew Makumi Kamuyu

65th Respondent

Joyce Wanjiru Ndirangu

66th Respondent

Wilfred Ndiragu Ngugi

67th Respondent

Gladys Kajuju Mwite

68th Respondent

Gideon Kyalo Kimulu

69th Respondent

Michael Mbira Ngigi

70th Respondent

Joseph Kinyanjui Mwaura

71st Respondent

Alex Nganga Kamau

72nd Respondent

Nancy Wanjiku Kibe

73rd Respondent

Hafsa Ibrahim Khalif

74th Respondent

Rosinah Nicholas Ngumbi

75th Respondent

Charles Munene Gatimu

76th Respondent

Ben Abenga Nyarango

77th Respondent

Athomi Self Help Group

78th Respondent

Peter Cherere Muthui

79th Respondent

Wilson Chege

80th Respondent

Daniel Kimunya Mathenge

81st Respondent

Kenneth Kamwere Maina

82nd Respondent

Samuel Maina Murithi

83rd Respondent

Stephen Kamunge Wainaina

84th Respondent

Daniel Gikonyo Ngoru

85th Respondent

Stephen Kamunge Wainaina

86th Respondent

Emma Wambui Karanja

87th Respondent

Nzuki Ndunda

88th Respondent

John Mwf,N.Ia Mi Jr A Ge

89th Respondent

Joyce Wairimu Njenga

90th Respondent

Yusuf Guyo Tole

91st Respondent

James Wanjohi Kariuki

92nd Respondent

John Njenga Wainaina

93rd Respondent

Hilda Mwende Ikingi

94th Respondent

Charles Odour Ongonge

95th Respondent

Eunice Mumbi Musau

96th Respondent

Catherine Wangui Mbogo

97th Respondent

Peter Chege Gitau

98th Respondent

Daniel Gikonyo Ngoru

99th Respondent

Joseph Musau Muyanga

100th Respondent

Joseph Musau Muyanga

101st Respondent

Alice Waithira Mungai

102nd Respondent

Waponya Construction Co.Limited

103rd Respondent

Mercy Munjiru Waiguru

104th Respondent

David Okechi

105th Respondent

David Okechi

106th Respondent

Gerishom D K Njoroge

107th Respondent

Alio Edin Mohamed

108th Respondent

Waponya Construction Co.Limited

109th Respondent

Daniel Gikonyo Ngoru

110th Respondent

Simon Ngugi Kungu

111th Respondent

David Okechi

112th Respondent

Wambua Ngulu

113th Respondent

Anthony Muli Mulwa

114th Respondent

Aliow Golo Teche

115th Respondent

Nick Ochoko Oyugi

116th Respondent

Julius Mulei Makau

117th Respondent

Hellena Wambui Manegene

118th Respondent

Rachael Muthoni Kamau

119th Respondent

Khamar Farah Ibrahim

120th Respondent

Daudi Haji Ali

121st Respondent

Edward Waiguru Muya

122nd Respondent

Bonasha Limited

123rd Respondent

Adan Alio Ibrahim

124th Respondent

Charles Gitonga Rugoji

125th Respondent

Towfiq General Trading Ltd

126th Respondent

David Kamau Mumo

127th Respondent

Adan Hassan Isaak

128th Respondent

Julius Manegene Njeru

129th Respondent

Mercy Munjiru Waiguru

130th Respondent

Ahmed Mohamed Liban

131st Respondent

Phil Musyoki Meti

132nd Respondent

Husein Ahmed Mohamed

133rd Respondent

Thomas Olulo Achola

134th Respondent

Elijah Maina Njuguna

135th Respondent

James Wahome Kibicho

136th Respondent

Jacques Kimeu Muthusi

137th Respondent

Ebby Musimbi Begisen

138th Respondent

Mary Bwari Momanyi

139th Respondent

James Gitaiga

140th Respondent

Edward Njoroge

141st Respondent

Elizabeth Wairimu Kimani

142nd Respondent

Charles Gitonga Rugoji

143rd Respondent

Moses Ngugi Githinji

144th Respondent

Mathew Mutuku

145th Respondent

Benson Nyagaka Mochere

146th Respondent

Timothy Karanja Njoroge

147th Respondent

Charles Gitonga Rugoji

148th Respondent

Faith Waithera Muturi

149th Respondent

Samuel Gatheca Muriuki

150th Respondent

Eden Onshow Mamow

151st Respondent

Joseph Wanyoike Muchoki

152nd Respondent

Josephat Angose Inziria

153rd Respondent

Mose Khamati Oyatsi

154th Respondent

Stephen Mbe Gakuru

155th Respondent

Joseph Mwanzia Mutio

156th Respondent

Elizabeth Katumbi Kimeu

157th Respondent

Anjeline Awino Wanga

158th Respondent

Tabitha Nyakinyua Gathere

159th Respondent

Stephen Kibe Gakuru

160th Respondent

Stephen Njagi Muriithi

161st Respondent

Charles Mwai Mahuthu

162nd Respondent

Mary Njeri Gathere

163rd Respondent

John Njuguna Njoki

164th Respondent

Elizabeth Katumbi Kimeu

165th Respondent

Nathan Nzai Muangi

166th Respondent

Elizabeth Wairimu Kimani

167th Respondent

John Kyalo Mulyungi

168th Respondent

Joseph K Githinji

169th Respondent

Musyoka Matheka

170th Respondent

Raphael Kibiru Tutuma

171st Respondent

Karanja Kihungu Gema

172nd Respondent

Gladys Nduku Kiilu

173rd Respondent

Anthony Muli Mulwa

174th Respondent

Gladys Nduki Kiilu

175th Respondent

Anthony Muli Mulwa

176th Respondent

Paul Iluvya Mutunga

177th Respondent

Anthony Muli Mulwa

178th Respondent

Anestine Gatakaa John

179th Respondent

Peter Njagi Nthiga

180th Respondent

Julius Kamau Irungu

181st Respondent

Stephen Gitau Mwai

182nd Respondent

James Muthumbi Gichuri

183rd Respondent

Judith Wambui Munene

184th Respondent

Amos Mwangi Chege

185th Respondent

Caroline Nduta Kinyua

186th Respondent

David Kinyanjui Kanyuku

187th Respondent

Michael Njoroge Kimani

188th Respondent

Jane Watetu Gathinji

189th Respondent

Peter Muigai Waweru

190th Respondent

Tumaini 25 Self Help Group

191st Respondent

Teresia Nyaguthie Onyango

192nd Respondent

Byron Kuria Migwe

193rd Respondent

Esther Wambui Kungu

194th Respondent

Faith Wambui Githui

195th Respondent

Muli Kioko

196th Respondent

John Peter Gathura

197th Respondent

Anthony Mwangi Maina

198th Respondent

Regina Mwikali Kitavi

199th Respondent

Peter Kitheka Kitile

200th Respondent

Shadrack Njenga Waweru

201st Respondent

Kenneth Kamwere Maina

202nd Respondent

Samuel Mwangi Kiragu

203rd Respondent

Joyce Constance Mwende Kitheka

204th Respondent

Cecilia Wangui Munyi

205th Respondent

Kenya Red Cross Society

206th Respondent

The OCS. Villa Police Stattion Embakasi

207th Respondent

The Subcounty Police Commander Embakasi

208th Respondent

Regional Police Commander Nairobi Region

209th Respondent

The Principal Secretary, State Department of Interior, Ministry of Interior and Cordination of National Government

210th Respondent

Lt. Gen Mohammed Badi

211th Respondent

Lydia Kwamboka

212th Respondent

Joram Icaranja

213th Respondent

Irshad Sumra

214th Respondent

and

Economic and Social Rights Centre (HAKIJAMII)

Interested Party

Katiba Institute

Interested Party

Legal Advice Centre t/a Kituo Cha Sheria

Interested Party

(Proposed) Jane Weru

Interested Party

Ruling

Background and Introduction 1. Vide notice of motion application dated the October 13, 2022; the 8th respondent/applicant has approached the Honourable court seeking for the following Reliefs;i.That the Petition dated November 22, 2022; and amended on the September 5, 2022; be struck out for being Res Judicata and an abuse of court process.ii.That in view of order 1 above, this Honourable Court has no Jurisdiction to hear and determine the Petition dated November 22, 2021 and amended on September 5, 2022; and therefore downs its tools accordingly;iii.That the cost of this Petition dated November 22, 2021 and amended on the September 5, 2022 and this application be borne by the petitioners and the 1st, 2nd, 3rd and 4th interested parties.

2. The instant application is premised and anchored on various grounds, which have been alluded to and enumerated at the foot thereof. Furthermore, the instant Application is supported by the affidavit of one Sanchen Chandaria sworn on the October 13, 2022; and a Further affidavit sworn by the said Sanchen Chandaria albeit on the January 12, 2023, respectively.

3. Pursuant to and upon being served with the subject Application the petitioners/respondents responded to the subject application vide a replying affidavit sworn by the 1st petitioner/respondent on the 27th October 2022; and in respect of which the 1st petitioner/respondent has contended inter-alia that the instant application is merely intended to obstruct, delay and or defeat the Due process of the Honourable Court.

4. Be that as it may, the instant Application came up for hearing on the February 15, 2023; and on which date the advocates for the respective parties agreed to canvass and dispose of the application by way of written submissions. For good measure, Learned counsel for the 8th respondent/applicant proceeded to and filed written submissions dated the January 12, 2023; whereas the Petitioners filed written submissions dated the March 3, 2023.

5. Nevertheless, the rest of the Parties, namely, Respondents and the Interested Parties never filed any written submissions. Instructively, Learned Counsel for the Petitioners, who has also been appearing for the First and second Interested Parties, titled his written submissions as Petitioners Written Submissions and not otherwise.

Submissions By the Parties A.Applicant’s submissions: 6. The Applicant herein filed written submissions dated the 12th January 2023 (which submissions were filed earlier than the date of directions for the filing and exchange of written submissions); but which in any event have raised and highlighted two (2) salient issues for consideration by the Honourable court.

7. Firstly, Learned counsel for the Applicant has submitted that the issues raised and canvassed at the foot of the amended Petition dated the 5th September 2022, are issues which have hitherto been canvassed and ventilated before various courts of competent Jurisdictions.

8. Furthermore, Learned counsel has contended that the Petitioners herein, either by themselves or through their duly authorized Representatives have previous filed and lodged various suits against, inter-alia the 8th Respondent/Applicant herein.

9. Additionally, Learned counsel has submitted that in the various suits, which have hitherto been filed, the gravamen/substratum of the Petitioners’ claim has always gravitated around the question of intended Eviction of persons resident on the suit property and otherwise comprising of Mukuru Kwa Njenga Residential Area.

10. Other than the foregoing, Learned counsel for the Applicant has ventured forward and thereafter supplied the particulars of the various cases, which are said to have been filed by and on behalf of the Petitioners herein and which cases are contended to espouse similar and/or substantially similar issues like the ones beforehand.

11. For good measure, Learned counsel has cited inter-alia ELC Petition Number E062 of 2018 (Mukuru Kwa Njenga Slum Residents & 13others versus Nairobi County Government & 13 Others); Nairobi HCC Misc. JR No. 784 of 1996 (Amina Mohamed & 6 Others versus The Chief Embakasi Location & 2 Others); ELC NO. 7 of 2020 OS (Zipporah Muthoni Ndungu & 5 Others versus The National Bank of Kenya & 12 Others); Nairobi HCC No. 876 of 2004 (Orbit Chemical Indutries Limited versus The Honorable Attorney General) and Civil Appeal No. 32 of 2014 (Honorable Attorney General v Orbit Chemicals Ltd), respectively.

12. In view of the foregoing, Learned counsel for the Applicant has therefore contended that the issues at the foot of the amended Petition are therefore issues which are barred by the Doctrine of Res-Judicata; insofar as same have been heard and conclusively been determined by Courts of competent Jurisdictions.

13. Arising from the foregoing, Learned counsel for the Applicant has thus submitted that on the basis of the Doctrine of Res-Judicata, this Honorable court is therefore prohibited and precluded from entertaining, adjudicating upon and/or re-engaging with the subject Dispute.

14. In support of the foregoing submissions and essentially that the issues beforehand are Res-Judicata; Learned counsel has cited and relied on various Decisions, inter-alia John Florence Maritime Ltd & Another versus The Cabinet Secretary, Transport and Infrastructure & 3 Others (2021) KESC 39 (KLR), Kenya Commercial Bank Ltd versus Muiru Coffee Estate Ltd & Another (2016)eKLR, E.T versus The Attorney General & Another (2012)eKLR and Kakaa versus Kadhis Court, Nairobi & Another; Saad Interested Party (2022)KEHC 11090 (KLR), respectively.

15. Secondly, Learned counsel for the Applicant has also contended that various issues which have been raised at the foot of the instant Petition also do not fall within the Jurisdictional mandate of the Environment and Land Court or otherwise. In this regard, Learned counsel has therefore contended that this Honorable court is therefore divested of the requisite Jurisdiction to entertain and adjudicate upon various issues, which have been highlighted and canvassed at the foot of the amended Petition.

16. To underscore the importance of Jurisdiction and the legal consequences attendant to proceedings taken without the requisite Jurisdiction, Learned counsel for the 8th respondent/applicant has cited and relied on the cases of, inter-alia, S. K Macharia &another versus Kenya Commercial Bank Ltd (2012)eKLR and Owners of Moto Vessel Lilian S versus Caltex Oil (K) Ltd (1989)eKLR, respectively.

17. Premised on the foregoing submissions, Learned counsel for the Applicant has therefore implored the Honourable court to find and hold that the amended Petition dated the 5th September 2022; is not only barred by the Doctrine of Res-Judicata; but has also been mounted by a court without the requisite Jurisdiction/competency, to entertain and/or adjudicate upon same.

18. Consequently and in view of the foregoing, Learned counsel for the Applicant has therefore sought that the entire amended Petition/ Proceedings, ought to be struck out with costs to the Applicant herein.

B.Petitioners’/ Respondents’ Submissions: 19. The Petitioners’/ Respondents’ herein filed written submissions dated the 3rd March 2023; and in respect of which Learned counsel for the Respondents has raised, highlighted and canvassed one salient issue for consideration by the Honourable court.

20. For good measure, Learned counsel for the Respondents has submitted that the various suits/proceedings which have been alluded and/or enumerated by the Applicant herein do not touch and/or concern the issues which are canvassed and highlighted at the foot of the amended Petition herein.

21. Additionally, Learned counsel for the Respondents has submitted that all the suits and/or previous proceedings which have been enumerated by the Applicant were all filed at the very latest in the year 2020 and yet the events culminating into the filing of the current Petition transpired and/or took place on or about October 2021. For coherence, Learned counsel for the Respondents has invited the Honourable court to take cognizance of the contents of paragraphs 120, 122, 123, 126, 132, 134, 136, 138, 139, 153 and 161, of the amended Petition which highlight the fact that the offensive demolitions complained of were commenced and carried out from the 11th October 2021 henceforth.

22. Having pointed out and underscored that the impugned activities were commenced from the 11th October 2021 and not otherwise, Learned counsel for the Respondents has therefore submitted that the suits and proceedings which were filed earlier than the said dates, cannot therefore be contended to raise and ventilate the same cause of action.

23. Furthermore, Learned counsel for the Respondents has submitted that prior to and before invoking and relying upon the doctrine of Res-Judicata, it is incumbent upon the Applicant to demonstrate the various ingredients that inform and underpin the Doctrine of Res-Judicata.

24. Instructively, Learned counsel for the Respondents has submitted that the Applicant herein has failed to demonstrate that indeed the cause of action which is captured at the foot of the amended Petition could have been filed/lodged in court prior to and or before its accrual and/ or occurrence, in the manner pointed out in the amended Petition.

25. Nevertheless, Learned counsel has invited the Honourable court to find and hold that the cause of action at the foot of the amended Petition, raises a separate and distinct cause of action, which has never been canvassed nor ventilated before any court of competent Jurisdiction.

26. In support of the forgoing submissions, Learned counsel for the Respondents has cited and relied on a number of decisions, inter-alia, Dock Workers Union Kenya versus Kenya Ports Authority (2021)KECA 87 (KLR);IEBC versus Maina Kiae & 5 Others (2018)eKLR; Ukay Estate Ltd & Another versus Shah Hirji Maneck Ltd & 2 Others (2006)eKLR; Greenfiled Investment Ltd versus Baber Alibhai Mauji (2000)eKLR and Rashi Allarakha Jan Mohamed & Company versus Jethalal Vallabhdas & Company (1956)EACA 255, respectively.

27. In view of the foregoing, Learned counsel for the Respondents has submitted that the Doctrine of Res-Judicata is therefore inapplicable to and in respect of the issues that have been highlighted and canvassed at the foot of the amended Petition. In this regard, Learned counsel has thus impressed upon the court to dismiss the Application dated the 13th October 2022.

Issues For Determination 28. Having reviewed the Application herein and the Response filed thereto and upon taking into consideration the written submissions filed by and on behalf of the Parties; the following issues do arise and are thus worthy of determination;i.Whether the Cause of Action highlighted at the foot of the amended Petition herein, are barred by the Doctrine of Re-Judicata.ii.Whether the various Reliefs sought at the foot of the amended Petition fall within the Jurisdiction of the Environment and Land Court or otherwise.

Analysis And Determination Issue Number 1. Whether The Cause Of Action Highlighted At The Foot Of The Amended Petition Herein, Are Barred By The Doctrine Of Res- Judicata. 29. The Applicant herein has filed and mounted the current Application and wherein same has contended that the issues highlighted and canvassed at the foot of the amended Petition dated the 5th September 2022; are barred and/or prohibited by the Doctrine of Res-Judicata.

30. Premised on the foregoing contention, Learned counsel for the Applicant has therefore implored the Honourable court to find and hold that the amended Petition is therefore premature, misconceived and otherwise Legally untenable.

31. Be that as it may and before venturing to consider whether or not the issues highlighted at the foot of the amended Petition dated the 5th September 2022; are barred by the Doctrine of Res-Judicata, it is imperative to take cognizance of the salient facts/ features that constitutes the cause of action before this Honorable court.

32. Consequently and in this respect, certain paragraphs of the amended Petition are relevant, important and thus worthy of reproduction. Invariably, it is imperative to reproduce the said paragraphs.

33. For ease of reference, the pertinent paragraphs are reproduced as hereunder;Paragraph 120On or about October 2021, agents, servants, employees and or anyone acting under the instruction of the 1st and 2nd Respondents came and began marking buildings located along Catherine Ndereba Road, perhaps as a means indicating that some day in the future, there would be a Road expansion.Paragraph 122The Respondents were aware, courtesy information received from the Deputy County Commissioner of the area that there would be a public participation session on the 21st October 2021 to discuss issues of the intended road construction. The Residents had geared up for the same with Eagerness.Paragraph 123Unfortunately, on the 11th day of October 2021 at around 17:30 hours, whilst Kenyans celebrated Utamaduni Day (a Public holiday), the Residents of Mukuru Kwa Njenga faced their worst fears. The infamous Sanny caterpillar Bulldozers were brought into the neighborhood flanked by a number of police officers in over 10 police vehicles drawn from various police stations around Nairobi County and the environs.Paragraph 124The Residents whose houses and business were marked were given 30 minutes to vacate the premises. Upon protest and demand for a written order of eviction and demolition, the residents were met with stern looking Police Officers wielding weapons.Paragraph 125Demolition then begun shortly afterwards without giving heed to the Human Dignity or the property worth millions which was being demolition.Paragraph 132Through out the month of November 2021, the Evictions in Mukuru Kwa Njenga progressed without any regard to Human dignity in spite of a wide media coverage and calls from Civil Societies to have the Evictions stopped.Paragraph 136However, around December 25th, 26th and 27th of November 2021; the 1st, 2nd, 7th to the 207th Respondents through their agents invaded the said Parcels of land with the intention of installing Beacons to the said Land notwithstanding the existence of a valid court order preventing them from doing so.Paragraph 139As the new year came to fruition, the President ordered a stop to the Evictions and vide a press release dated January 14th 2022; titled Government strikes deal with Mukuru Land Owner; this was testament of the existing good will of the Government to resolve this unending Mukuru Land Dispute.Paragraph 153Further, the Petitioners were not consulted prior to the demolitions on the 11th October 2021; despite there being a Notice from the Deputy County Commissioner of a planned public participation on the 21st October 2021. Certainly, this contravened Article 10 of the Constitution of Kenya and all other enabling laws detailing the need of public participation.Paragraph 161Indeed, the Petitioners assert that Article 19 read together with Article 20 of the Constitution 2010; requires that any policy or action undertaken by the Respondent be guided and within the Bill of Rights framework. The Petitioners assert the failure to issue a notice as well as the failure to provide an alternative area of settlement prior to the evictions on the 20th October 2021; was a gross violation of the Constitution, 2010.

34. From the contents of the paragraphs which have been enumerated herein before, what is evident and apparent is that the Evictions and demolitions that are complained of are the ones that were commenced and thereafter undertaken (sic) by the Respondents with effect from the 11th October 2021 henceforth.

35. It is the impugned evictions and demolitions that are contended to have breached, violated and or infringed upon the human rights and fundamental freedoms of (sic) the Petitioners herein.

36. Having taken cognizance of the foregoing observations, it is now appropriate to revert back and to consider whether the circumstances which took place from the 11th October 2021 and the subsequent days thereafter; could have been prosecuted and or ventilated before any court of competent Jurisdiction in the year 2020 or therebefore.

37. Evidently, the substratum of the current Application is that the issues being raised by the Petitioners herein were canvassed and ventilated before various courts in terms of the suits, whose details were availed and highlighted elsewhere herein before.

38. However, I beg to point out that the suits which the Applicant has highlighted and alluded to found and underpin the basis for raising the ground of Res-Judicata, relates to events that preceded the cause of action being ventilated at the foot of the current Petition.

39. Clearly and to my mind, there is no way that the Evictions and (sic) offensive demolitions that were undertaken on the 11th October 2021, could have prophetically been litigated in the years 1996, 2014, 2014, 2018 and 2020, respectively; given that the suits alluded to were filed in the named years.

40. To my mind, the Applicant herein was endeavoring to stretch the import and tenor of the Doctrine of Res-Judicata beyond the known and conceivable limits. Nevertheless, it is appropriate to point out that the Doctrine of Res-Judicata does not prohibit and/or preclude a cause of action that would arise in future. Further and in addition, neither could the Petitioners herein have conceived of what was going to happen in the year 2021; so as the file a suit, if at all, in that regard, earlier that the occurrence of the acts complained of.

41. Having addressed the foregoing features, it is imperative to now underscore that prior to and or before invoking the Doctrine of Res-Judicata, it behooves the Applicant to established and demonstrate that the various ingredients espoused in Section 7 of the Civil Procedure Act, are discernable and evident. Nevertheless, in this case, the Applicant has failed to justify the existence of the known ingredients.

42. Be that as it may, the Doctrine of Res-Judicata was duly highlighted and succinctly elaborated upon by the Supreme Court of Kenya in the case of John Florence Maritime Services Limited & another versus Cabinet Secretary Transport & Infrastructure & 3 others (Petition 17 of 2015) [2021] KESC 39 (KLR) (Civ) (6 August 2021) (Judgment), where the court stated and held thus;58. This court in the case of Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & anotherMotion No 42 of 2014 [2016] eKLR (Muiri Coffee case) held as follows regarding the doctrine of res judicata:52Res judicata is a doctrine of substantive law, its essence being that once the legal rights of parties have been judicially determined, such edict stands as a conclusive statement as to those rights. It would appear that the doctrine of res judicata is to apply in respect of matters of all categories, including issues of constitutional rights. Such a perception has a basis in comparative Jurisprudence; in the Ugandan case of Hon Norbert Mao v Attorney-General, Constitutional Petition No 9 of 2002; [2003] UGCC3, the petitioner brought an action on behalf of 21 persons from his constituency, for declarations under article 137 of the Uganda Constitution, and for redress under article 50 of that Constitution. The matter arose from an incident in which officers of the Uganda Peoples Defence Forces attacked a prison, and abducted 20 prisoners, killing one of them.Unknown to the petitioner, another action had already been filed under article 50, seeking similar relief; and Judgment had been given in Hon Ronald Reagan Okumu v Attorney-General, Misc Application No0063 of 2002, High Court HCT 02 CV MA 063 of 2002. The Constitutional Court dismissed the petition, on a plea of res judicata, declining the petitioner’s pleas that certain important constitutional declarations now sought, had not been accommodated in the earlier Judgment.53. In Silas Make Otuke v Attorney-General & 3 others, [2014] eKLR, the High Court of Kenya agreed with the Privy Council decision in Thomas v The AG of Trinidad and Tobago (1991) LRC (Const) 1001, in which the Board was “satisfied that the existence of a constitutional remedy as that upon which the appellant relies does not affect the application of the principle of res judicata”.54. The doctrine of res judicata, in effect, allows a litigant only one bite at the cherry. It prevents a litigant, or persons claiming under the same title, from returning to court to claim further reliefs not claimed in the earlier action. It is a doctrine that serves the cause of order and efficacy in the adjudication process. The doctrine prevents a multiplicity of suits, which would ordinarily clog the courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively.55. It emerges that, contrary to the respondent’s argument that this principle is not to stand as a technicality limiting the scope for substantial justice, the relevance of res judicata is not affected by the substantial-justice principle of article 159 of the Constitution, intended to override technicalities of procedure. Res judicata entails more than procedural technicality, and lies on the plane of a substantive legal concept.56. The learned authors of Mulla, Code of Civil Procedure, 18th Ed 2012 have observed that the principle of res judicata, as a judicial device on the finality of court decisions, is subject only to the special scenarios of fraud, mistake or lack of jurisdiction (p 293):The principle of finality or res judicata is a matter of public policy and is one of the pillars on which a judicial system is founded.Once a Judgment becomes conclusive, the matters in issue covered thereby cannot be reopened unless fraud or mistake or lack of jurisdiction is cited to challenge it directly at a later stage. The principle is rooted to the rationale that issues decided may not be reopened and has little to do with the merit of the decision.”57. The essence of the res judicata doctrine is further explicated by Wigram, V-C in Henderson v Henderson (1843) 67 ER 313, as follows:… where a given matter becomes the subject of litigation in, and adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward, as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a Judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time” [emphasis supplied].58. Hence, whenever the question of res judicata is raised, a court will look at the decision claimed to have settled the issues in question; the entire pleadings and record of that previous case; and the instant case¾to ascertain the issues determined in the previous case, and whether these are the same in the subsequent case. The court should ascertain whether the parties are the same, or are litigating under the same title; and whether the previous case was determined by a court of competent jurisdiction. This test is summarized in Bernard Mugo Ndegwa v James Nderitu Githae & 2 others, (2010) eKLR, under five distinct heads:(i)the matter in issue is identical in both suits;(ii)the parties in the suit are the same;(iii)sameness of the title/claim;(iv)concurrence of jurisdiction; and(v)finality of the previous decision.59. That courts have to be vigilant against the drafting of pleadings in such manner as to obviate the res judicata principle was judicially remarked in ET v Attorney-General & another, (2012) eKLR, thus:The courts must always be vigilant to guard litigants evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the court. The test is whether the plaintiff in the second suit is trying to bring before the court in another way and in a form of a new cause of action which has been resolved by a court of competent jurisdiction. In the case of Omondi v National Bank of Kenya Limited and others, (2001) EA 177 the court held that, ‘parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit.’ In that case the court quoted Kuloba J, in the case of Njangu v Wambugu and another Nairobi HCCC No 2340 of 1991 (unreported) where he stated, ‘If parties were allowed to go on litigating forever over the same issue with the same opponent before courts of competent jurisdiction merely because he gives his case some cosmetic face-lift on every occasion he comes to court, then I do not see the use of the doctrine of res judicata…..”59. For res judicata to be invoked in a civil matter the following elements must be demonstrated:a)There is a former Judgment or order which was final;b)The Judgment or order was on merit;c)The Judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; andd)There must be between the first and the second action identical parties, subject matter and cause of action.(See Uhuru Highway Developers Limited v Central Bank of Kenya & others [1999] eKLR and See the decision of the Court of Appeal in Nicholas Njeru v Attorney General & 8 others Civil Appeal 110 of 2011 (2013) eKLR)

43. Having reviewed the pleadings in respect of the various suits, which were cited and referred to by the Applicant herein and upon juxtaposing same as against the cause of action highlighted and canvassed at the foot of the amended Petition; I come to the inevitable and inescapable conclusion that the Doctrine of Res-Judicata it is not only irrelevant but also inapplicable to the obtaining circumstances.

44. In a nutshell, the limb of the instant Application propagating the claim of Res-Judicata is therefore dismissed.

Issue Number 2. Whether The Various Reliefs Sought At The Foot Of The Amended Petition Fall Within The Jurisdiction Of The Environment And Land Court Or Otherwise. 45. Other than the question of Res-Judicata, there is an aspect of the amended Petition that touches on certain claims/reliefs, which are worthy of consideration so as to determine whether same falls within the scope and Jurisdictional limit of the Environment and Land Court.

46. Nevertheless, before venturing to consider the Jurisdictional question, it is imperative to reproduce certain reliefs which are critical in determining whether or not same fall within the purview of the Environment and Land Court, as established vide the Provisions of Article 162(2)(b) of the Constitution, 2010.

47. For ease of reference, prayer (a) states as hereunder;a.A declaration that the actual and intended construction and improvement of roads within Mukuru Kwa Njenga Area along Catherine Ndereba Road and within the special planning area established pursuant to gazette notice number 3433 of 2020 (volume CXXII-No. 84) is unlawful and contravened Articles 10, 26, 27, 28, 32, 40, 43, 47, 53, 54, 55, 56 and 67 of the Constitution and Section 152(c), (f) and (g) of the Land Act 2012; and Regulation 63, 66, 67 and 70 of The Land Regulations (Legal Notice No. 280 of 2017).Prayer c.A declaration that the 1st and 2nd Respondents have violated Article 232 of the Constitution and Sections 3 and 5(2) of the Public Service (Values & Principles) Act.Prayer f.A declaration that the 1st Respondent through their agents, servants, employees and/or any one acting under their instruction violated the Petitioners rights under the Constitution specifically; Article 28- dignity, 29 – freedom and security of the person, 32 – freedom of religion, 40 – property, 43 – the right to accessible and adequate housing and the right to education, 47 – the right to fair administrative process, 53 – the right of the child, 54 – the rights of persons with disability, 57 – the rights of older members of the society.Prayer g.General damages at a quantum assessed by the court in compensation for the violation of the Petitioners fundamental freedoms under articles 26, 28, 29, 43, 47, 54, 55, 56 and 57 of the Constitution and as a result of the forced evictions that led to the destruction of their propertiesPrayer j.An order that the 3rd Respondent monitors the compliance of the declarations and orders issued by this court in this cause and promptly bring to the attention of this court or any court of competent jurisdiction any noncompliance by the Respondents or any one else with the declarations and orders of this court

48. My understanding of the reliefs which have been highlighted in the preceding paragraphs drives me to the conclusion that same falls within the jurisdictional mandate of the High Court pursuant to and by dint of article 165(3) of the Constitution, 2010; and not the Environment and Land Court. For good measure, the Articles of the Constitution which have been cited and highlighted in the body of the reliefs pointed out are substantially outside the mandate of this Honorable court.

49. Instructively, there is no gainsaying that courts derive Jurisdiction directly from the Constitution or statute or both. In this respect, if the Environment and Land Court had the requisite Jurisdiction to entertain and adjudicate upon the highlighted reliefs then same would have been expressly stipulated and provided for. Further and in addition, it is common ground that a court of law can neither expand nor enhance its Jurisdiction, by way of innovation or otherwise. Invariably, a court of law must operate within the Jurisdictional strictures provided for and illuminated by the constitutive Charter.

50. To underscore the importance of Jurisdiction, it is appropriate to reiterate the succinct and elaborate exposition of the law by the Supreme court of Kenya Samuel K Macharia & Another versus Kenya Commercial Bank Ltd & Another (eKLR), where the court stated and held thus;(68)A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings.This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.

51. Additionally, it is also imperative to underscore that where a court is divested of Jurisdiction then the court must not undertake any further proceedings over and in respect of the impugned matter. For good measure, any proceedings taken by a court without Jurisdiction are a nullity and amounts to nothing.

52. In this respect, it is instructive to highlight and underscore the ratio decidendi in the case of Phoenix of E.A. Assurance Company Limited versus S. M. Thiga t/a Newspaper Service [2019] eKLR, where the court succinctly held thus;1. At the heart of this appeal is the issue of jurisdiction. It is a truism jurisdiction is everything and is what gives a court or a tribunal the power, authority and legitimacy to entertain any matter before it. What is jurisdiction?2. In common English parlance, ‘Jurisdiction’ denotes the authority or power to hear and determine judicial disputes, or to even take cognizance of the same. This definition clearly shows that before a court can be seized of a matter, it must satisfy itself that it has authority to hear it and make a determination. If a court therefore proceeds to hear a dispute without jurisdiction, then the result will be a nullity ab initio and any determination made by such court will be amenable to being set aside ex debito justitiae. It is for this reason that this Court has to deal with this appeal first as the result directly impacts Civil Appeal No.6 of 2018 which is related to this one. We shall advert to this issue later. In the meantime, it is important to put this appeal in context.

53. Duly nourished by the succinct exposition of the law, I come to the conclusion that this Honorable court is devoid and bereft of Jurisdiction to engage with prayers (a), (c), (f), (g) and (j) of the amended Petition dated the 5th September 2022. Consequently and in this regard, the said prayers be and are hereby struck out.

54. To the contrary, the only prayers that shall remain alive for purposes of ventilation before this Honorable court shall be prayers (b), (d), (e), (h), (i) and (k), respectively.

Final Disposition 55. Having reviewed the two issues which were enumerated in the body of the Ruling and upon consideration of the various provisions of the Constitution; it is evident that the Application dated 13th October 2022; is partially meritorious.

56. Consequently and in the premises, the Application under reference is hereby allowed to the extent that prayers (a), (c), (f), (g) and (j) of the amended Petition dated the 5th September 2022 be and are hereby struck out. However and for completeness, the limb of the Application touching on the Doctrine Res-Judicata is hereby dismissed.

57. Given the nature of suits/proceedings before the Honourable court, I direct that costs of the Application shall abide the outcome of the Petition.

58. It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 29TH DAY OF MAY 2023. OGUTTU MBOYAJUDGE