https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4927

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MAKUENI** **ELC PETITION NO. 15 OF 2019** **THANGE RIVER BASIN RESIDENTS' ASSOCIATION (Suing on behalf of the Residents of River Thange Basin, Kibwezi Makueni County) &** **44 OTHERS ………........................................................................PETITIONERS** **-VERSUS-** **KENYA PIPELINE COMPANY LIMITED ………………..1ST RESPONDENT** **NATIONAL ENVIRONMENT MANAGEMENT** **AUTHORITY (NEMA)……………………………………...2ND RESPONDENT** **THE CABINET SECRETARY,** **MINISTRY OF ENVIRONMENT ………………………….3RD RESPONDENT** **THE CABINET SECRETARY,** **MINISTRY OF HEALTH …………………………………...4TH RESPONDENT** **THE CABINET SECRETARY,** **MINISTRY OF ENERGY AND PETROLEUM …………...5TH RESPONDENT** **THE HON. ATTORNEY GENERAL ………………………6TH RESPONDENT** **RULING** 1. Before the court for determination is the Notice of Motion dated 25th July, 2025. It is made under the provisions of Articles 48, 50 and 159 of the Constitution as well as Order 2 Rule 15 of the Civil Procedure Rules, 2013. 2. The 1st Respondent seeks issuance of the following orders: - 3. **[*SPENT*]** 4. **THAT the further amended petition dated 20th May, 2025 be struck out for being incompetent or otherwise an abuse of the process of court.** 5. **THAT the suit herein be struck out for being res judicata as the issues/claim/dispute between the parties were determined in MAKUENI ELC PETITION NO. 9 OF 2019.** 6. **THAT the costs of this application be awarded to the Applicant.** 7. The application is based on the grounds appearing on its face together with the supporting affidavit sworn by Elizabeth Rop, the Senior Legal Officer of the 1st Respondent on even date. The deponent averred that this court sitting in a three-judge bench delivered a judgment on 11th July, 2025 in **MAKUENI ELC PETITION NO. 9 OF 2019**. That the said petition and the present one are similar in nature seeking similar reliefs. It was further averred that apart from the parties and a few amendments that had been made to the petition, both pleadings are similar and relate to the same subject matter. 8. The deponent contended that the **MAKUENI ELC PETITION NO. 9 OF 2019** covered the residents of Thange River Basin and it would be unjust to subject the Applicant to litigate an already decided matter. It was further contended that the further amended petition is an abuse of the court process and that it should be struck out with costs. 9. Opposing the application, the Petitioners/Respondents filed a replying affidavit sworn by Philip Mbulu Somba Advocate sworn on 19th September, 2025. The deponent contended that **MAKUENI ELC PETITION NO. 9 OF 2019** had totally different parties as compared to the current Petitioners. It was further contended that even though the former Petition determined some issues such as liability and granted some reliefs, the current set of Petitioners have not been compensated for the damages they incurred. That unless the current petition is fully heard and determined, the Petitioners stand to suffer irreparable economic loss and injustice. It was averred that it is in the interest of justice that the issue of quantum be determined as it has never been heard by this court. 10. The application was canvassed by way of written submissions. 11. In the Applicant’s submissions dated 26th November, 2025, Counsel contended that the Petitioners are trying to have a second bite at the cherry. That by adding new faces and wearing a different hat, the Petitioners cannot escape the doctrine of res judicata. Counsel reiterated that the reliefs sought cannot be granted since the issues were determined by the three-judge bench in **MAKUENI ELC PETITION NO. 9 OF 2019.** 12. The Petitioners filed their submissions dated 25th November, 2025. On their behalf, Counsel argued that the Petitioners before this court were not parties in **MAKUENI ELC PETITION NO. 9 OF 2019** nor do they derive any rights or claims under the Petitioners in the former suit. Counsel further contended that the Petitioners in the present suit have a distinct legal standing with specific grievances. 13. It was submitted that the issue of quantum for the current petitioners has never been considered and therefore, cannot be subsumed under the previous judgment. Counsel further submitted that even though this court was competent to hear and determine the previous suit, such competence does not extend to bar the claims for the Petitioners in this suit who were not represented. It was contended that the requirements for invoking the doctrine of *res judicata* under Section 7 of the Civil Procedure Act had not been established. 14. Counsel was of the view that the filing of the present suit seeking redress and compensation for the Petitioners cannot constitute abuse of court process. That the Applicants had not demonstrated evidence of mala fides conduct or an ulterior motive by the Petitioners. In light of the foregoing, Counsel urged the court to dismiss the application with costs. 15. The only issue for determination is whether the Applicants have demonstrated that the present suit is barred by the doctrine of *res judicata*. 16. In the **Black’s Law Dictionary, 9th Edition** at page 1425, the doctrine of *res judicata* has been defined as follows: ***"a thing adjudicated" 1. An issue that has been definitively settled by judicial decision. 2. An affirmative defense barring the same parties from litigating a second lawsuit on the same claim, or any other claim arising from the same transaction or series of transactions and that could have been but was not raised in the first suit.”*** 1. *Res judicata*, is embodied in Section 7 of the Civil Procedure Act which outlines as follows: - **‘No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.’** 1. The Applicant contended that while the present petition was pending in court, a decision was delivered in **Makueni** **ELC** **Petition No. 9 of 2019; Muindi Kimeu & 3074 others versus Kenya Pipeline Company Limited & another**. That the said petition and the present one are similar in nature seeking similar reliefs. That apart from the parties and a few amendments that had been made to the petition, both pleadings are similar and relate to the same subject matter. 2. The Petitioners produced a copy of the court’s judgment in Makueni ELC Petition No. 9 of 2019 as Exhibit “PMS-1”. Having perused the said judgment, it is clear that the petitioners therein and the Petitioners in the present suit are not identical. Whereas the cause of action is the same being an oil spill that occurred in 2015 which affected residents of Thange River Basin, the Applicant has not demonstrated that the present Petitioners are the same parties in the previous suit or that they are litigating under the same title. 3. In the case of **Independent Electoral & Boundaries Commission v Maina Kiai & 5 others [2017] eKLR**, the Court of Appeal aptly held as follows: - ***“Res judicata is a matter properly to be addressed in limine as it does possess jurisdictional consequence because it constitutes a statutory peremptory preclusion of a certain category of suits. That much is clear from Section 7 of the Civil Procedure Act, 2010;*** ***“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 the 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.”*** ***Thus, for the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must all be satisfied, as they are rendered not in disjunctive, but conjunctive terms.”*** 1. Similarly, the Court of Appeal expressed the elements which must be demonstrated when the doctrine of *res judicata* has been invoked in **Uhuru Highway Development** **Ltd v Central Bank of Kenya [1999] eKLR** as follows: - ***“(a) The former judgment or order must be*** ***final;*** ***(b) The judgment or order must be on merits;*** ***(c) It must have been rendered by a court having jurisdiction over the subject matter and the parties; and*** ***(d) There must be between the first and the second action identical parties, subject matter and cause of action.”*** 1. With those principles in mind, it is evident that the plea of res judicata herein has not been properly raised by the Applicant. The petitioners in this suit are not identical and their claims for compensation were not available for adjudication in the former suit. The Petitioners herein have distinct claims to those in the former suit. 2. In any event, this Court is concerned with a determination of whether indeed the alleged constitutional violations by the Respondents have been proved and whether the Respondents are liable to redress and compensate the Petitioners for the alleged violations they have pleaded. To allow the application would in effect hinder access to justice for the Petitioners whose grievances have not yet been adjudicated by a court of competent jurisdiction. That would not aid this Court’s core mandate of an expeditious disposal of cases in accordance with Article 159 (2) of the Constitution. 3. In the end, the application for striking out of the suit is devoid of merit and is hereby dismissed with costs. It is so ordered. **................................................** **HON. E. O. OBAGA, FCIArb** **JUDGE** **RULING SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 30TH DAY OF JULY, 2026.** **IN THE PRESENCE OF:** Mr. Mureithi for some Petitioners Mr. Mbulu and Mr. Maanzo for Petitioners Mr. Mugun for 1st Respondent. Mr. Wabwire for Mr. Odongo for 3rd to 5th Respondents. Mr. Kuria for Mr. Ngala for 2nd Respondent