[2024] KEELC 6568 (KLR)

Woodley Residents Welfare Association & 4 others v County Government of Nairobi & 2 others; Rights Commission & 3 others (Interested Parties) (Environment & Land Petition 1 of 2024) [2024] KEELC 6568 (KLR) (7 October 2024) (Ruling)

Neutral citation: [2024] KEELC 6568 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Petition 1 of 2024

MD Mwangi, J

October 7, 2024

Between

Woodley Residents Welfare Association

1st Petitioner

Wanja Kimani

2nd Petitioner

Peter Ngatia

3rd Petitioner

John Mugwe

4th Petitioner

Samson Mugacha Mwangi

5th Petitioner

and

County Government of Nairobi

1st Respondent

Attorney General

2nd Respondent

Ministry of Lands, Housing and Urban Development

3rd Respondent

and

Rights Commission

Interested Party

Kenya Civil Aviation Authority

Interested Party

Management Authority

Interested Party

Africa Reit Limited

Interested Party

Ruling

Background 1. The Petitioners in this matter in the petition dated 2nd April, 2024 are Woodley Residents Welfare Society and its officials. They allege that members of Woodley Residents Welfare Society have been residents/tenants of Woodley Estate for more than 50 years. They have consequently known “Woodley” to be their home all along. They have allegedly built shops, hospitals, schools, churches and other social amenities for their use and benefit of other members of the public in the neighbourhood.

2. The Petitioners further allege that the then City Council of Nairobi (the predecessor in title to the Nairobi City County Government, had resolved to sell houses at Woodley to willing tenants/residents but the process of sale was marred by corruption whereby non-tenants were allowed to buy the houses in total disregard of the existing tenants/residents. The sale was consequently stopped when the tenants allegedly went to court after being continuously harassed by people who came in with letters and purported contracts as proof of purchase of the houses in Woodley. The Petitioners assert that some of their members and Petitioners had to seek the intervention of courts in this country for their titles to be confirmed.

3. In 2021, the then Nairobi Metropolitan Services (NMS) through their Director of Legal Services, allegedly wrote to the 1st Petitioner communicating their intention to start projects in Woodley beginning with the vacant sites before proceeding to areas under occupation. It is pleaded that Nairobi Metropolitan Services engaged members and agreed on how public participation was to be conducted. It is the Petitioners’ contention that public participation was not conducted according to the law. They allege that members were only served with short notices to attend meeting whose agenda was mostly unclear.

4. The Petitioners accuse the 1st Respondent, the Nairobi City County Government, of intending to ‘suddenly and hurriedly chase their families from Woodley area to put up the affordable housing project otherwise known as urban renewal without any resettlement action plan or a planned and transparent compensation scheme. The Petitioners aver that they only recently learnt that Woodley had without their knowledge been subdivided into lots/plots.

5. The Petitioners state that they have been willing to settle the tussle with the 1st Respondent amicably but the 1st Respondent has been unwilling to pursue the route of amicable settlement. Instead, it seeks to permanently, hurriedly and, forcefully evict the residents in favour of the public project.

6. The Petitioners assert that the 1st Respondent has already entered into a contract for purposes of the intended project; contract dated 12th January, 2024 with AFRICA REIT LTD. The said company according to the Petitioners has been contracted to design, finance and build the intended project.

7. The Petitioners posit that they are fearful that the 1st Respondent through the project allegedly, surrounded in mystery is set to evict the residents of Woodley. They therefore seek to restrain the 1st Respondent from proceeding with the project, otherwise they may be rendered homeless.

8. The Petitioners assert that there are no known environmental impact assessment reports nor approvals from relevant bodies and agencies.

9. The Petitioners in the petition seek various orders, namely: -A.A declaration that the constitutional rights of the Petitioners have been threatened by the 2nd Respondents singularly and jointly.B.A declaration that the 2nd Respondent failed in its constitutional duty to carry out public participation under Article 10 of the Constitution.,C.A declaration that evicting the Petitioners and their families without clear resettlement plans or compensation will be against their right to housingD.An order do hereby issue allowing continued enforcement of the resolution by the Nairobi City Council (now County Government of Nairobi) to allow tenants to buy Council houses at Woodley Estate.E.A Judicial Review (order) of mandamus compelling the Respondents to cry out a procedural public participation exercise in Woodley before they embark on any ground-breaking exercise/construction project.F.General damages for mental stress and torture caused by the Respondent’s secretive and uncertain plans to hurriedly unsettle the Petitioners and their members/families.G.Any other order the court will be pleased to issue for purposes of justice in the circumstances.,H.Costs in favour of the Petitioners.

10. Alongside the petition, the Petitioners too filed a Notice of Motion application dated 2nd April, 2024 seeking orders of interlocutory injunction against the Respondents pending the hearing and determination of the main petition. They sought to restrain the Respondents from doing any act interfering with the their quiet, peaceful, actual and exclusive possession and enjoyment of land known as Woodley/Joseph Kang’ethe Estate or LR. No. 209/13539.

11. Before the Petitioners’ application for interim orders could be set down for hearing, the 1st Respondent filed the application under consideration being the Notice of Mdated 3rd July, 2024. The application seeks to strike out the Petitioners’ application and the Petition; both dated 2nd April, 2024, with costs. The application by the 1st Respondent is premised on the 15 grounds on the face of it and on the supporting affidavit of Charles K. Kerich, the County Executive Committee Member of the 1st Respondent sworn on 3rd July, 2024.

12. In a nutshell, the 1st Respondent asserts that disputes relating to ownership, occupation, subdivision, acquisition and or issuance of titles to the suit land and or any other land arising from subdivision of the suit land were heard and determined in Nairobi ELCC 2054/2017; Kenya Anti-Corruption Commission – vs- Paul Ngetha and Woodley Residents Welfare Society. The application and the petition by the Applicants are therefore res judicata.

13. The 1st Respondent further asserts that the Applicants are residents in the suit land by virtue of being its tenants; they are not proprietors and have no valid legal claim over the suit land. Consequently, the 1st Respondent asserts that they lack the locus standi to file the application and the petition herein. The suit land is public land reserved for public utilities and public use. The 1st Respondent maintains that the government has earmarked the suit land for purposes of construction of affordable housing in a bid to realize the right to adequate housing for Kenyans under Article 43 of the Constitution.

14. The 1st Respondent affirms that prior to the implementation of the project, it undertook public consultations on various dates as outlined in the application, where it received grievances from various quotas and responded to them adequately. The Petitioners and residents of Woodley took part in the public participation activities.

15. The 1st Respondent denies the allegations that it intends to forcefully or otherwise evict the families of the Petitioners from Woodley area. It asserts that their apprehensions are baseless and unfounded. The petition and the application by the Petitioners is therefore premised on unfounded apprehensions which are misplaced, scandalous, frivolous, ill founded, vexatious and amount to an abuse of the court process.

Replying affidavit by the 4th Interested Party 16. The 4th Interested Party filed a replying affidavit sworn by one Joyce Wanjiru on 19th August, 2024 in support of the 1st Respondent’s application.

17. The 4th Interested Party annexed a copy of the judgment in ELCC 2054/2007 and reiterated the 1st Respondent’s assertion that this petition is res judicata. The deponent attested that the court in ELCC 2054/2007 determined that the Petitioners only had rights of occupation of the Council houses (now the subject matter of this suit) merely as tenants of the 1st Respondent. The titles they purportedly held were invalid, null and void. Their petition is an attempt to re-litigate issues of ownership that were already determined by a court of competent jurisdiction.

18. The 4th Interested Party further points out that the Petitioners have in their replying affidavit confirmed the existence of an appeal against the judgement of the court in ELCC 2054/2007 lodged in the Court of Appeal being Civil Appeal No. E375/2020 but still went ahead to initiate this matter well aware of the pending appeal.

19. On the aspect of public participation, the 4th Interested Party states that it entered into a contract with the 1st Respondent for the re-development of lot 1 of Woodley/Joseph Kangethe Estate occupied by 42 tenants. The contract was entered into after a procurement process that had even advertised in the Daily Nation Newspaper of 20th February, 2023 as part of public participation.

20. The 1st Respondent carried out a process of verification of bona fide tenants of lot 1 with a view to facilitating their relocation to allow the re-development works to commence. The verified tenants are to be facilitated with a sum of Kshs. 900,000/- which is to cater for rent for 36 months which is the projected period of construction. At the completion of the construction each tenant is to be allocated a three-bedroomed apartment at no cost at all.

21. The 4th Interested Party postulates that the 1st Respondent organized numerous public participation meetings where it also attended as the developer. The 3rd Petitioner in this matter was indeed appointed as the spokesperson for the 42 tenants of Lot 1. The Petitioners were therefore fully involved in the public participation meetings.

22. The 4th Interested Party affirms that the Petitioners have couched their suit in constitutional terms in order to sensationalize the matter and invoke the jurisdiction of this court. It avers that even a cursory look at the Petitioners’ pleadings reveals no violations or threat of constitutional rights violations. The petition is misconceived and incompetent.

23. The 4th Interested Party assets that paragraph 16 and 17 of the Petitioners’ replying affidavit discloses the true nature of their claim. The Petitioners allege that they are apprehensive that their tenancy agreements could be terminated at any time.

24. It is the 4th Interested Party’s position that irregular termination of a tenancy agreement can be addressed in a different forum and does not give rise to breach of constitutional rights. The entire petition is an abuse of the court process designed to keep the parties embroiled in unending legal drama to the detriment of the 1st Respondent and all the residents of Nairobi City County.

25. The 4th Interested Party finally avers that delaying the project will cause the Respondents and the 4th Interested Party to suffer substantial financial loss. It is therefore in the interest of justice and fairness that the Petitioners’ petition be struck out with costs.

Response by the Petitioners. 26. The Petitioners responded to the 1st Respondent’s application by way of a replying affidavit sworn by one Samson Mugacha Mwangi on 19th July, 2024.

27. The deponent asserts that the Petitioners are not claiming ownership of the suit property. He further states that the decision in ELCC 2054/2057 was not binding on the other suits filed by residents of Woodley Estate.

28. It is the petitioners’ position that they were not restrained from living in the suit property LR. No. 209/13539 by the judgment in ELCC 2054/2007. They assert that the 1st Petitioner indeed filed a notice of appeal against the judgment and an application for stay pending the determination of the appeal by the Court of Appeal on the basis that they were tenants of Nairobi City County but were fearful that the tenancy could be terminated at any time.

29. The deponent asserts that it is the same fear that has made them file the application dated 2nd April, 2024. He asserts that the court found merit in their application for stay and accordingly stayed the judgment dated 27th February, 2020 on 1st November, 2021.

30. The Petitioners submit that there are neither final nor substantive orders in ELCC 2054 of 2007 and that the same is still pending adjudication. On that premises, the 1st Respondent and the 4th Interested Party cannot use it as their basis to claim that the petition herein is res judicata. They state that a matter pending appeal cannot be said to be res judicata.

31. At paragraph 21 of the Replying Affidavit, the deponent asserts that there are many other suits pending determination over the same land that the 1st Respondent wants to develop.

32. The Petitioners state that the alleged public participation meetings were committee meetings with the Chief Officer of the County Government pertaining to the residents’ welfare matters and a technical committee set up by the Governor. The Petitioners deny being invited for any public participation exercise.

Court’s Directions. 33. The court’s directions were that the application dated 3rd July 2024 by the 1st Respondent and the preliminary objection by the 4th Interested Party be canvassed by way of written submissions. The Petitioners, the 1st Respondent/Applicant and the 4th Interested Party filed their respective submissions which now form part of the record of the court. I have had the opportunity to read the submissions and consider them accordingly.

Issues for Determination. 34. The key issue for determination is whether the petition herein and the application by the Petitioners dated 2nd April, 2024 is res judicata and an abuse of the process of court. Of course the court is bound to make a determination on the issue of costs, either way.

Analysis and Determination 35. The doctrine of res judicata, I must say, is a well-trodden path. There are plenty of decisions on the doctrine of res judicata from the superior courts of this country.

36. Odunga, J (as he then was) in the case of Gladys Nduku Nthuki – vs- Letshengo Kenya Ltd (2022) eKLR, elaborated in great details, the meaning of the doctrine of res judicata. The statutory basis of res judicata is Section 7 of the Civil Procedure Act which prohibits courts from trying any a suit or issue in which the matter directly and substantively 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.

37. The learned Judge made reference to a number of decided cases in his exposition. Explaining the rationale of the doctrine, he referred to the Court of Appeal decision in IEBC – VS- Maina Kiai & 5 others (2017) eKLR, where the court stated that;“The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as a pragmatic and common-sensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and fora, to obtain at last, outcomes favourable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute and calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice.”

38. Justice Odunga noted that the Court of Appeal in the Maina Kiai case had quoted with approval the Indian case of Lal Chand – vs- Randha Kishan Air 1977 SC 789 that had discussed the rationale of res judicata in the following words;“The principle of res judicata is conceived in the larger public interest which requires that all litigation must, sooner than later, come to an end. The principle is also founded in equity, justice and good conscience which require that a party which has once succeeded on an issue should not be permitted to be harassed by a multiplicity of proceedings involving determination of the same issue. The practical effect of the res judicata doctrine is that it is a complete estoppel against any suit that runs afoul of it, and there is no way of going around it – not even by consent of the parties –because it is the court itself that is debarred by a jurisdictional injunct, from entertaining such suit.”

39. Also cited was the decision in the case of Lotta – vs- Tanaki (2003) 2 EA 356, where the court was of the view that;“…………its object is to bar multiplicity of suits and guarantee finality to litigation. It makes conclusive a final judgment between the same parties or their privies on the same issue by a Court of competent jurisdiction in the subject matter of the suit. The scheme of Section 9 (of the Civil Procedure Code of 1966) therefore contemplates five conditions which, when co-existent, will bar a subsequent suit. the conditions are;i.The matter directly and substantially in issue in the subsequent suit must have been directly and substantially in issue in the former suit.ii.The former suit must have been between the same parties or privies claiming under them;iii.The parties must have litigated under the same title in the former suit;iv.The court which decided the former suit must have been competent to try the subsequent suit,andv.the matter in issue must have been heard and finally determined in the former suit.”

40. The decision of the former East African Court of Appeal in Gurbachan Singh Kalsi –Yowani Ekori Civil Appeal NO.62 of 1958, that was also cited by Odunga J, addressed a critical aspect in the application of the doctrine of res judicata. The court held that;“Where a given matter becomes the subject of litigation in, and of 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[s] 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.”

41. Odunga J, expounded further on the application of the doctrine of res judicata and affirmed that the mere addition of parties in a subsequent suit does not necessarily render the doctrine inapplicable since a party cannot escape it by simply undertaking a cosmetic surgery to his pleadings. He stated that;“If the added parties peg their claim under the same title as the parties in the earlier suit, the doctrine will still be invoked since the addition of the party would in that case be for the sole purpose of decoration and dressing and nothing else. Under the explanation to Section 7 of the CPA, where persons litigate bona fide in respect of a public right claimed in common by themselves and others, all persons interested in such right shall, for the purposes of the section, be deemed to claim under the persons so litigating.”

42. Regarding the applicability of the doctrine of res judicata in constitutional petitions, Mumbi Ngugi, J. (as she then was) in the case of Tassia Plot Owners Association – vs- Managing Trustees of NSSF & Another (2015) eKLR, made reference with approval to the decisions of Lenaola J (as he then was) in the case of Okiya Omtata Okuiti & Another – vs – The A.G & Ano Petition No.593 of 2013, were he stated that;“While therefore the principle is a principle of law of wide application, therefore it must be sparingly invoked in rights- based litigation and the reason is obvious."

43. In the case of Wycliffe Gisebe Nyakina – vs0 AG & Another Petition No. 403 of 2014, the learned Judge had stated that;“While the courts in constitutional litigation must apply the principle of res judicata sparingly they must also be vigilant to guard against litigants who are clearly evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the same court.”

44. The upshot of the above holdings by Lenaola J (as he then was) is that the principle of res judicata is applicable in constitutional petitions just like in civil suits.

45. The Supreme Court in the case of John Florence Maritime Services Ltd & Another – vs- Cabinet Secretary for Transport & Infrastructure & 3 others (2021) eKLR, affirmed the issue of res judicata in reference to constitutional Petitioners and stated that;“We reaffirm our position as in the Muiri Coffee case that the doctrine of res judicata is based on the principle of finality which is a matter of public policy. The principle of finality is one of the pillars upon which our judicial system is founded and the doctrine of res judicata 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.If we were to find that the doctrine does not apply to constitutional litigation, the doctrine may very well lose much of its legitimacy and validity. We say this in light of the fact that constitutional tenets permeate all litigation starting with the application of Article 159 of the Constitution in both civil and criminal litigation, and its application now embedded in all procedural statutes. Further Article 50 on right to fair hearing and Article 48 on access to justice are fundamental rights which every litigant is entitled to. Such a holding may very well lead to parties, that whenever they need to circumscribe the doctrine of res judicata, they only need to invoke some constitutional provision or other.”

46. The 1st Respondent’s application as stated earlier assets that the petition herein is in relation to ownership, occupation, subdivision, acquisition and or issuance of titles to the suit land and/or any other land arising from the sub-division of the suit land. The 1st Respondent asserts that the issues were heard and determined in ELCC 2054 of 2007 – Kenya Anti-Corruption Commission – vs- Paul Moses Ngetha & Woodley Residents Welfare Society. The 1st Respondent’s position is supported by the 4th Interested Party.

47. The Petitioners in this case were the Respondents in the case ELCC 2054 of 2007. The court in ELCC 2054 of 2007 rendered a judgment in the case which, though it has been appealed from as alleged by the Petitioners, has not been varied and or set aside. It is still a valid judgment of this court which was competent to address the issues therein.

48. The Petitioners, as noted earlier acknowledged the judgment in ELCC 2054/2007 but assert that it was on ownership of the suit property which is not what they seek in this matter. They argue that they were not restrained from living in the suit property in any event. They are tenants of the 1st Respondent but are fearful that their tenancy could be terminated at any time. They sought a stay in the Court of Appeal; the very same reason why they seek interim orders in this matter vide their application dated 2nd April, 2024. They further argue that ELCC 2054/2007 is still pending adjudication and the doctrine of res judicata cannot apply.

49. As I pointed out, the Petitioners at paragraph 21 of their replying affidavit state that there are many other suits pending determination over the same land that the 1st Respondent wishes to develop.

50. This assertion by the Petitioners under oath leads me to ask the question; what then was their purpose or intention of filing this petition?

51. In its judgement in the case ELCC 2054 of 2007, the court had made the following conclusive findings;“Due to the foregoing, I am not convinced that the defendant was an innocent purchaser of the suit property for value without notice. Even if the defendant had acquired the suit property innocently without notice of the illegal process through which the council went about in selling the houses at Woodley/Joseph Kangethe Estate, I do not think that that would have validated his title to the suit property. In my view, a title created through an illegal process is a nullity. The title for the suit property came about as a result of an illegal process that was undertaken by the council. That process did not confer upon the council a valid interest in the suit property that it could convey to the defendant. An illegal and flawed process could not give rise to a valid title. This court cannot endorse a title created illegally. See, Snell v Unity Finance Ltd. [1963] 3 All E.R that was cited by the plaintiff in which the court stated that no court will lend its aid to a man who founds his cause of action upon an immoral or illegal act.It is my finding that the title that the defendant acquired from the council was a nullity. The defendant does not therefore have a valid title over the suit property. The defendant had argued that he was not supposed to be bothered with the council’s internal processes and that his concern was to ensure that the council had an apparent title as stated earlier. My take on this is that the council was not an ordinary property dealer. The council was a creature of a statute and had a duty to operate under the law in its dealings with the property held by it. As I mentioned earlier, anyone who was dealing with the council in any transaction had a duty to ascertain that the council had complied with the law as relates to the transaction. The land held by the council was so held in trust for the public. The law regulating the council’s dealings with land was put in place to ensure that the public interest was protected in all land dispositions. Due to the foregoing, I disagree with the defendant’s contention that the duty of the council to comply with the law relating to disposition of land was administrative in nature and an internal affair of the council in respect of which those dealing with the council needed not to concern themselves with.”

52. Having carefully considered the findings by the court in ELCCC 2054 of 2007, and the petition filed in this matter as well as the application dated 2nd April, 2024, I am convinced that the gravamen of the petition by the Petitioners is prayer number (D) in the petition dated 2nd April, 2024.

53. In the said prayer, the Petitioners pray for;“…..an order does hereby issue allowing continued enforcement of the resolution by the Nairobi City Council (now County Government of Nairobi) to allow tenants to buy the Council houses at Woodley Estate.”

54. I say so because in their own petition, the Petitioners admit and state that, as early as the year 2021, the defunct Nairobi Metropolitan Services (NMS) informed them in writing about the plans to carry out developments in Woodley. The 1st and 4th Respondents have demonstrated the various stages and activities the plans to develop the suit property have been subjected to including tendering, which was even advertised in a newspaper of nationwide circulation. How then can the Petitioners allege that the project has been carried out in secrecy?

55. I am persuaded that the allegations by the Petitioners against the 1st Respondent, of failure to conduct adequate public participation, are only meant to take the court ‘up the garden path’. They are what the Supreme Court in John Florence Maritime Services Ltd & Another (supra) referred to as “invoking some constitutional provision or other” in a bid to circumscribe the doctrine of res judicata.

56. This court is alive to the clarion call for eternal vigilance in the case of Nancy Mwangi t/a Worthlin Marketers – vs- Airtel Networks (K) Ltd (formerly Celtel Kenya Ltd) & 2 others (2014) eKLR, in which the court quoted ET – vs- AG, where the court stated that;“The courts must always be vigilant to guard (against) 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 2nd 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.”

57. This court finds that the Petitioners’ intention in filing this petition is to re-litigate an issue that has already been decided by a court of competent jurisdiction; by giving it a cosmetic facelift and renaming it a constitutional petition.

58. Consequently, I allow the 1st Respondent’s application dated 3rd July, 2024 and uphold the 4th Respondent’s preliminary objection and strike out the petition dated 2nd April, 2024 and the application dated 2nd April, 2024 on the basis that they are res judicata and amount to an abuse of the process of court, with costs to the 1st Respondent and 4th Interested Party.It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 7TH DAY OF OCTOBER 2024. M.D. MWANGIJUDGEIn the virtual presence of:Ms. Gathora for the 1st RespondentMs. Mokeira for the 2nd Interested Party (h/b for Mr. Mogaka)Mr. Waithaka for the 4th Interested PartyMs. Mwangi for an Intended Interested PartyMs. Nekesa for the Petitioners (h/b for Mr. Omari)N/A for the 2nd & 3rd Respondents and the 1st & 3rd Interested PartiesCourt Assistant: YvetteM.D. MWANGIJUDGE