I. Introduction
1. The Ruling of this Honourable Court relates to the Notice of Motion application dated 4th July 2025. It was brought by the 1st Respondent, KARSAN VELJI VELANI on behalf of the estate of VELJI PARABAT[Deceased] against the County Government of Kwale, the Petitioner herein pursuant to the provisions of Sections 1A, 1B, 3A, 7 and 8 of the Civil Procedure Act, Cap. 21.
2. Upon service of the application, while opposing it, the Petitioners/Respondent filed their replies through a replying Affidavit dated 7th November 2025. Accordingly, the Honourable Court shall be dealing with it later on in this Ruling.
II. The case by the 1st Respondent/Applicant
3. The 1st Respondent/Applicant sought for the following orders:-
a) Spent.
b) That the subject matter of the Petition dated 2nd April 2025 is res iudicata the suits in Mombasa High Court Misc. Civil Application No.19 of 2012 Karsan Velji Velani (Suing as The Administrator of the Estate of Velji Parbat) – Versus - County Council of Kwale Chief Land Registrar Commissioner of Land & another [2014] KEHC 6966 (KLR) and Nairobi High Court Petition No. 491 of 2014 Karsan Velji Velani - Versus - The National Land Commission (2015) eKLR.
c) That the Petition dated 2nd April 2025 be and is hereby struck out with costs to the 1st Respondent.
4. The application was premised on the grounds, testimonial facts and averments made out under the 16 Paragraphed Supporting Affidavit dated 4th July 2025 sworn by MUKESHKUMAR NARAN HIRANI, together with annextures marked as “KVV – 1 to 8” annexed thereto. He averred as follows:-
a) He referred to himself as an authorized agent of Karsan Velji Velani, the 1st Respondent/Applicant, under Power of Attorney No. 78830/1 and hence duly authorized and competent to swear the affidavit.
b) The subject matter of the Petition was the property known as Land Reference No. 12224 (Hereinafter referred to as “The Suit Property”) which was registered in the names of the duly appointed Legal Administrators of the original owner Velji Parabat (deceased).
c) The suit property was the subject of litigation in the Civil Case “Mombasa Judicial Review Misc. Civil Application No. 19 of 2012 Karsan Velji Velani (Suing as The Administrator of the Estate of Velji Parbat) – Versus - County Council of Kwale Chief Land Registrar Commissioner of Land & another [2014] KEHC 6966 (KLR)” wherein Justice Mukunya delivered a Judgment on 14th February 2014 confirming that the suit property rightfully belonged to the 1st Respondents.
d) The Petitioner/1st Respondent herein (through its predecessor the County Council of Kwale) was a party to the aforementioned suit and raised the same issues raised in its Petition which were determined by the Learned Justice Mukunya. Annexed and marked as “KVV – 4” and “KVV – 5” were the affidavits of Ndurumo Wa Gakui dated 20th June 2012 and 1st October 2012 respectively which it was stated deposed similar issues to the ones raised in the instant Petition and the supporting affidavit of Hon. Saumu Beja Mahaja.
e) The issues raised in the present Petition as appertaining the renewal of the lease to the suit property and their right to property were substantively dealt with by the Learned Justice Mukunya in his elaborate afore – stated Judgment.
f) The 2nd Respondent herein also purporting to disown the Applicants ownership of the suit property published a newspaper notice on “the East African Standard” on 19th September 2014 claiming that the lease to the suit property had expired and that the property reverted to the Petitioner herein.
g) The said newspaper notice was the subject of litigation in “Nairobi High Court Petition No. 491 of 2014 Karsan Velji Velani - Versus - The National Land Commission (2015) eKLR” wherein Justice Isaac Lenaola (as he then was) in his Judgment of 13th November 2015 substantively dealt with the legality and constitutional validity of the actions of the 2nd Respondent as well’ as the finality and import of the Judgment of Justice Mukunya in the Mombasa case.
h) All the parties to the present Petition were parties in the previous proceedings where the same issues raised in the present Petition were substantively addressed by the previous courts.
i) The extension was for 66 years commencing from 1st January 2009. The conditions for the extension were subject to the exclusion of 300 acres as set out below: -
i. A portion of 185 acres to be surrendered for allocation to the squatters;
ii. A portion of 115 acres to be surrendered to the County Council for future plaining; and
iii. the commission reviews the valuation to increase the rates payable.
j) The suit property's lease was renewed as at 1st January 2008 and a title issued with respect to the remainder of the property now known as L.R. No. 12224/6 (Title No. CR. 75461).
k) The surrender of the 300 acres for purposes of allocation to the squatters and the Petitioner for future planning was agreed by the parties vide a consent dated 18th May 2011 which was recorded between the Petitioner (through its predecessor County Council of Kwale), the squatters, the Commissioner of Lands and the estate of Velji Parbat herein in the Civil Case “Mombasa High Court JR Misc. Civil Application No. 327 of 2010 The Republic - Versus - Kwale County Council, Commissioner of Lands, Velji Parbat Ex - Parte Mr. James M. Katinga & Others” before Justice J.B. Ojwang [as he then was].
l) Therefore this Honourable Court lacks the jurisdiction to entertain the present Petition as pleaded. Hence, the Petition ought to be struck out with costs to the 1st Respondent/Applicant.
III. The Case by the Petitioners/Respondents
As already indicated above, the application was opposed through filing of a 23 Paragraphed Replying Affidavit dated 7th November 2025 sworn by SAUMU BEJA MAHAJA. The deponent averred as follows that:-
a) The Deponent was the County Executive Committee Member responsible for Land Environment and Natural Resources for the County Government of Kwale, hence competent to swear this Affidavit on behalf of the Petitioner herein.
b) The application was misconceived, legally untenable and an abuse of the court process as the plea of Res Judicata was not applicable to the present Petition.
c) In the year 1993 the then County Council of Kwale passed a resolution to grant the 1st Respondent a lease extension for 66 years over approximately 1, 200 acres effective from 1st January 2009.
d) Subsequently, in the year 2010 the Council reviewed and passed a new resolution reducing the lease to 400 acres for 33 years.
e) That aggrieved by the 2010 resolution, the 1st Respondent filed a civil suit being “Mombasa HC Misc. Civil App No. 19 of 2012 - Karsan Velji Velani – Versus - County Government of Kwale, Chief Land Registrar and Commissioner of Lands” seeking to quash the 2010 decision.
f) The High Court through Justice S Mukunya in his Judgement delivered 14th February 2024 rendered a decision quashing the committee resolution on 20th December 2010 granting the Ex - Parte Applicant a 33 - year lease starting 1st January 2009 for 400 acres and found the 1993 resolution as being valid.
g) It was important to note that this Court’s decision was disclosed in the Petitioner’s Petition at paragraphs 13, 14, 15 & 16. The issues arose as set out in Paragraph 17 to wit: ”However, the Court’s pronouncements were not followed by the issuance of any lease extension or renewal *instrument by the Commissioner of lands”.
h) To date no decree had been extracted and there remained serious ambiguity and confusion regarding the extend and effect of the said Judgement as certain orders therein appear to have been ultra vires.
i) Further that the issuance and renewal of leases was not a court function but a preserve of the 2nd Respondent as an independent commission.
j) The 2nd Respondent herein, the National Land Commission, being the body constitutionally mandated to manage public land, published a notice on 19th September 2014 titled expiry of lease and reversion of interest to County Government of Kwale and which notice was with regards to the suit property.
k) The notice included the following aspects:-
i. The 99 – year leases for parcel numbers Tiwi Block 11 (167.5 acres), Tiwi Block 12 (167.5 acres), Tiwi Block 18 (710 acres) and Kidomaya/Lungalunga/12224 (1500 acres) all situated in Kwale County and registered in 1904 expired in 2003;
ii. The said leases have never been extended or renewed;
iii. The said parcels have reverted to the County Government of Kwale;
iv. No form of transactions shall be approved or recognized after the expiry of the lease in 2013;
v. No development of any kind shall be approved on these parcels.
vi. Occupation of any part of these parcels by unauthorized persons shall be treated as trespasser squatter on public land.
vii. The National Land Commission and the County Government of Kwale shall conduct a status appraisal of these four ( 4 ) parcels of land in order to inform themselves on the most beneficial use of the parcels. Members of the public are therefore notified that the officials of both the National Land Commission and the County Government of Kwale will be visiting the four parcels of land mentioned in this notice and will carry out field surveys and other forms of data collection.
viii. Members of the public are requested to cooperate with the Commissions and the County Government officials who will be identifying themselves as they perform their duties.
Signed by Prof. Muhammad A. Swazuri, the Chairman, NLC.
l) The 1st Respondent was aggrieved by the public notice and filed “Nairobi High Court Petition No. 491 of 2014 Karsan Velji Velani - Versus - The National Land Commission (2015) eKLR” seeking to quash the notice and declare them entitled to receipt of the extended lease and that a Certificate of Lease be issued in their favour.
m) The case was heard, according to the deponent, the Judge (Hon. Lenaola J (as he then was)) delivered its Judgement on 13th November, 2015. In a nutshell, the Court found that the Petitioner herein violated the 1st Respondent’s right to be heard and in the circumstances referred it quashed the public notice published in the newspaper of 19th September, 2014. In summary, it referred the issue of renewal of the lease back to the 3rd Respondent as per their constitutional mandate.
n) The reversionary interest of the Applicant over the suit property could not be extinguished by the two court Judgements and since the 1st Respondent was not granted an order extending his lease, he then had no proprietary rights over the suit parcel.
o) At paragraph 17 of the affidavit, it was deposed that the suit property was currently not subject to any lease. That the land reverted back to the Applicant and the 1st respondent has not suffered any loss since the terms of the lease was that the land revert to the Petitioner at the expiration of the lease. The original lease expired and no renewal has been effected.
p) The 1st Respondent’s occupation of the suit property was termed illegal and that the instant Petition sought the interpretation and clarification of the two Judgment earlier made with regards to the suit property.
q) It was stated that as per various decisions by the Supreme Court and which included the case of “John Florence Maritime Services Limited & another – Versus - Cabinet Secretary, Transport and Infrastructure & 3 others [2021] eKLR” “the doctrine of Res Judicata” does not apply where new facts arise and where constitutional interpretation issues arise.
r) The instant application was made to delay the final determination of the instant Petition and hence ought to be dismissed with costs.
s) This Court has the jurisdiction and duty under the provision of Articles 22, 23 and 165 (3) of the Constitution of Kenya, 2010 to interpret and clarify prior court orders to give effect to constitutional values and resolve pubic land disputes.
IV. Submissions
5. On 23rd October 2025 while all the parties were present in Court, they were directed to have the application dated 4th July 2025 disposed of by way of written submissions.
6. Pursuant to that, the 1st Respondent /Applicant and the Petitioner/Respondent herein obliged and a ruling date was reserved for 4th March 2026 but eventually delivered on 6th March 2026 accordingly.
A. The Written Submissions by the 1st Respondent
7. The 1st Respondent’s submissions were dated 5th December 2025 and were filed by the Law firm of Messrs. Wahome & Akedi Advocates. Mr. Kingori Advocate commenced his submissions by providing the brief background of the matter. He informed the Court that the present Petition related to the interest in land held by the duly appointed Legal Administrators of the Estate of Velji Parabat – the Applicant herein on LR. No. 12224/6 which was a sub – division of LR. No. 12224. It was instructive to note that at the time of filing this suit LR No. 12224 had already been sub – divided and a title issued to the Applicant on LR No. 12224/6 while the Petitioner was vested with another portion of LR. No. 12224. At the same time, the community had acquired title on a portion of LR. No. 12224/5 which the Petitioners were championing for them to have.
8. The Petitioner herein sought to challenge the extension of the Lease granted by its predecessor – the County Council of Kwale – to the Applicants and the orders that this Honourable Court interprets the orders issued in “Mombasa HC Misc. Civil App No. 19 of 2012 - Karsan Velji Velani – Versus - County Government of Kwale, Chief Land Registrar and Commissioner of Lands” and also that the Applicants were in illegal occupation of the LR No. 12224.
9. Therefore, it was based on these summarized facts that the 1st Respondent/Applicant herein moved this Court vide the instant application dated 4th July, 2025 and which was opposed herein by the Petitioner/Respondent herein.
10. The Learned Counsel averred that the 1st Respondent/Applicant identified one sole issue for determination - whether the present Petition dated 2nd April 2025 by the Petitioner/Respondent herein offended “the Doctrine of Res Judicata”. The Learned Counsel submitted that the issues raised in the instant Petition were similar to the ones that had previously been determined in “Mombasa High Court Misc. Civil Application No.19 of 2012 Karsan Velji Velani (Suing as The Administrator of the Estate of Velji Parbat) – Versus - County Council of Kwale Chief Land Registrar Commissioner of Land & another [2014] KEHC 6966 (KLR)” and “Nairobi High Court Petition No. 491 of 2014 Karsan Velji Velani – Versus - The National Land Commission (2015) eKLR”.
11. Reference was made to the provisions of Section 7 of the Civil Procedure Act, cap. 21 and which outlines the doctrine of res judicata. The 1st Respondent further outlined the dictum of the supreme court in the case of: “John Florence Maritime Services Limited & another – Versus - Cabinet Secretary, Transport and Infrastructure & 3 others [2021] eKLR” as to the applicability of the doctrine of res judicata in constitutional Petitions. The issues being raised by the Petitioner herein in the filed Petition dated 2nd April, 2025 was res judicata the decisions in the above cited High Court cases and whereupon Judgements were delivered accordingly.
12. According to Counsel, there existed no new circumstances which suggested that substantive injustice would be suffered by the Petitioner or those who claim under it nor was there any special circumstances to warrant this court exempting the applicability of the decisions of the previous courts of concurrent jurisdiction. The court was invited to carefully interrogate the decisions previously rendered on the subject matter as highlighted in the pleadings as the same lead to the fact that the instant petition is res judicata.
13. The Learned Counsel pointed out the similarity in the three suits and that the two former suits had conclusively dealt with the issues as raised in the Petition. The court had considered them and would not reproduce the brief juxtapose as presented in the submissions.
14. In conclusion, the court was urged to allow the application as prayed.
B. The Written Submissions by the Petitioner/Respondent
15. The Law firm of Messrs. MKJ Advocates LLP filed submissions dated 8th January 2026 on behalf of the Petitioner/Respondent. Mr. Lewa Advocate commenced by stating that the Petitioner/Respondent was opposing the application dated 4th July, 2025 by the 1st Respondent/Applicant herein. The said application sought to strike out the Petition dated 2nd April, 2025 by the Petitioner on the grounds it offended the doctrine of Res Judicata to two previous Judgements and orders emanating from suits heard and determined by High Court over the same subject matter.
16. The Petitioner identified one issue for determination which was whether the present Petition was res judicata to the previous suits that is Mombasa High Court Misc. Civil Application No. 19 of 2012 and Karsan Velji Velani v National Land Commission (2015) eKLR.
17. According to counsel, the provision of Section 7 of the Civil Procedure Act, Cap. 21 sets out what entails the doctrine of res judicata as was outlined by the supreme court in the case of “John Florence Maritime Services Limited (Supra”) where the court held that res judicata may not apply where new facts or a different legal framework has emerged, or where the subsequent matter requires interpretation or application of the Constitution in ways not contemplated in the earlier case in light of the Petition that was presented.
18. The Learned Counsel addressed the issue as to whether this Petition was then res judicata to “Mombasa High Court Misc. Civil Application No. 19 of 2012 and Karsan Velji Velani – Versus - National Land Commission (2015) eKLR?” The answer was in the negative for reasons that the causes of action were different given that “Mombasa High Court Misc. Civil Application No. 19 of 2012 Karsan Velji Velani (Suing as Administrator of the Estate of Velji Parbat) – Versus - County Council of Kwale, Chief Land Registrar & Commissioner of Lands”, matter challenged the validity of the 2010 resolution of the County Council, a judicial review cause confined to administrative decisions. That the 2015 matter, “Karsan Velji Velani – Versus - National Land Commission (2015) eKLR” sought quashing of NLC public notice published a notice on 19th September 2014. The present Petition on the other hand, however, seeks new and distinct issues that could not have been raised earlier.
19. It was also submitted that the Petition herein sought for the interpretation and clarification from a previous ruling. That under the provision of Articles 22, 23, 165(3), and 162(2)(b) of the Constitution, this Court has jurisdiction to interpret the Constitution and to determine questions of law relating to the environment and land. This includes the effect, interpretation and implementation of prior court orders where necessary to uphold legality and the rule of law. That the Petitioner’s prayer for interpretation of the Judgment of 14th February 2012 in “Misc. Civil Application No. 19 of 2012 Karsan Velji Velani (Suing as Administrator of the Estate of Velji Parbat) – Versus - County Council of Kwale, Chief Land Registrar & Commissioner of Lands” was well within this Court’s mandate and is intended to resolve existing uncertainty, not to re-litigate the matter. The Petitioner never sought to re - open, appeal, set aside or vary that Judgment.
20. The Learned Counsel for the Petitioner/Respondent submitted that the Petitioner had at all times acted with full candour and transparency. In fact, the existence of the two matters upon which the 1st Respondent/Applicant anchored its plea of res judicata namely, Misc. Civil Application No. 19 of 2012 and Karsan Velji Velani v National Land Commission (2015) eKLR were expressly disclosed within the body of the Petition itself. From this, the disclosure underscored that the Petitioner/Respondent was not seeking to re-litigate issues previously determined, but rather inviting the Court to address new and distinct grievances that have arisen subsequent to those earlier proceedings.
21. The Petitioner/Respondent also submitted on whether the doctrine of Res judicata should be applied in constitutional litigation? Reference was made to the Supreme Court in the case of:- “John Florence Maritime Services Limited (Supra”) which referred to the decision “Okiya Omtatah Okoiti & another – Versus - Attorney General and Another Petition No 593 of 2013 [2014] eKLR” on the principles of res judicata.
22. Reference was also made to the Supreme court decision in “E.T. – Versus - Attorney General & another [2012] KEHC 5506 (KLR)” where it was acknowledged that while res judicata applies to constitutional matters, it must be applied with caution to avoid barring legitimate enforcement of constitutional rights. Additionally, in advancing the disposition on ‘rarest and clearest circumstances”.
23. The Learned Counsel stated that it is trite law that the doctrine of res judicata applied in constitutional litigation only in the rarest and clearest of cases. That the issues presently before this Honourable Court are materially distinct from those in the earlier proceedings, arise from subsequent actions of the Respondents, and could not have been adjudicated in the prior suits. Accordingly, this was not one of the exceptional instances where the doctrine may be invoked to bar a Constitutional Petition.
24. On whether res judicata could bar a constitutional Petition arising from a judicial review, it was submitted that a determination of a judicial review application could not be termed as final determination of issues under a Constitutional Petition. The considerations were different; the orders the court may grant were more expanded under a Constitutional Petition and therefore the outcomes are different. The court in hearing a Constitutional Petition may very well arrive at the same conclusion as the court hearing a judicial review application. However, the considerations right from the outset were different, the procedures are different, the reliefs that the court may grant are different, the court will be playing fairly different roles.
25. In conclusion the court was urged to find that the previous judicial review matters namely, Mombasa High Court Misc. Civil Application No. 19 of 2012 and Karsan Velji Velani v National Land Commission (2015) eKLR could not operate as a bar to the current Constitutional Petition. That the plea of Res - Judicata advanced by the 1st Respondent/Applicant failed to meet the statutory and judicially-established thresholds. The court was urged to dismiss the application with costs.
V. Analysis and Determination
26. I have carefully read and considered all the pleadings herein being the application dated 4th July 2025, the Replying Affidavit by the Petitioner herein, the written submissions, the plethora of cited authorities to bolster, the relevant and appropriate provisions of the Constitution of Kenya, 2010 and the statutes.
27. In order to arrive at an informed, fair, just and reasonable decision, the Honourable Court has framed three (3) issues for determination. These are: -
a) Whether this court in its current capacity as a constitutional court can invoke the doctrine of res judicata.
b) If so in [1] above, whether the tenets of the doctrine of res judicata have been met and what orders should issue
c) Who bears the costs of the application dated 4th July 2025?
ISSUE NO. a). Whether this court in its current capacity as a constitutional court can invoke the doctrine of res judicata
28. Under this Sub – heading the Honourable Court will be deciphering whether the application dated 4th July, 2025 by the 1st Respondent/applicant has any merit or not. The main substratum in the matter is whether “the Doctrine of Res – Judicata” has been breached whatsoever. Primarily, this legal issue has been expansively submitted on by the parties herein.
29. To begin with, the Environment and Land Court has jurisdiction under the provision of Article 162 [2] of the Constitution of Kenya, 2010 and Section 13 of the Environment and Land Court Act, No. 19 of 2011 to determine the question whether a right or fundamental freedom in the Bill of rights has been denied, violated, infringed or threatened.
30. Nonetheless, having stated this, the Honourable Court will now delve into interrogating whether the doctrine of res judicata can be invoked in a constitutional court as is in the instant application. As already stated so elaborately, “the doctrine of Res Judicata” is codified.
31. under the provision of Section 7 of the Civil Procedure Act, Cap. 21 which provides 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.”
Explanation. (1)—The expression “former suit” means a suit which has been decided before the suit in question whether or not it was instituted before it.
Explanation. (2)—For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court.
Explanation. (3)—The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Explanation. (4)—Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation. (5)—Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused.
Explanation. (6)—Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.
32. Undoubtedly, the Doctrine of Res-judicata is a point of law as clearly stated above. Subsequently, it has the potential of determining a matter summarily. However, to proof it, there would be need to interrogate the issues of the alleged cases. This would call for intense probing of the facts.
33. From the above legal provisions, the following are the ingredients that constitutes and the bar of “the Doctrine of Res Judicata” to be effectively raised and upheld an account of a former suit, the following elements must all be satisfied, as they are rendered not in disjunctive, but conjunctive terms:-
a) The suit or issue was directly and substantially in issue in the former suit.
b) That former suit was between the same parties or parties under whom they or any of them claim.
c) Those parties were litigating under the same title.
d) The issue was heard and finally determined in the former suit.
e) The court that formerly heard and determined the issue was competent to try the subsequent suit or this suit in which the issue is raised.
34. It is trite law that “Res judicata” is a point of law and a true preliminary objection, if proven to exist a court ought to allow its procession and dismiss the entire suit. The Court of Appeal in “IEBC – Versus - Maina Kiai & 5 others (2017)eKLR” observed that:-
‘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. …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;
a) The suit or issue was directly and substantially in issue in the former suit.
b) That former suit was between the same parties or parties under whom they or any of them claim.
c) Those parties were litigating under the same title.
d) The issue was heard and finally determined in the former suit.
e) The court that formerly heard and determined the issue was competent to try the subsequent suit or this suit in which the issue is raised.
The rule or doctrine of Res - Judicata serves the salutary aim of bringing finality to litigation and afford parties closure and respite from the specter of being vexed, haunted and hounded by issues and suits that have already been determined by competent court. It is designed as a pragmatic and common sensual protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, y a multiplicity of suits and for a, to obtain at last outcomes favorable 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 this rest in the public interest for swift, sure and certain justice.’
35. The doctrine of “res judicata” is important in adjudication of case and serves two important purposes: -
i. it prevents multiplicity of suits which would ordinarily clog the courts, and heave unnecessary costs on the parties to litigate and defend two suits which ought to have been determined in a single suit and
ii. it ensures litigation comes to an end; disappointed parties are barred from camouflaging already decided cases in new garment in the art of pleadings.
36. In order therefore to decide as to whether this case is res judicata, a court of law should always look at the decision claimed to have settled the issues in question and the entire pleadings of the previous case and the instant case to ascertain:-
i. what issues were really determined in the previous case;
ii. whether they are the same in the subsequent case and were covered by the decision of the earlier case.
iii. whether the parties are the same or are litigating under the same title and that the previous case was determined by a court of competent jurisdiction.
37. The test in determining whether a matter is res judicata as stated was summarized in “Bernard Mugo Ndegwa – Versus - James Nderitu Githae and 2 Others (2010) eKLR”, as follows that: -
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.
38. The doctrine of res judicata was discussed by the Supreme court in the case of “John Florence Maritime Services Limited (Supra)”. In paragraph 86, the court restated the elements that must be proved before a court may arrive at the conclusion that a matter is res judicata. The ration in this decision was that, for the Preliminary objection to succeed, the Courts needed have a look at the “the entire pleadings and record”. Indeed some judges have held, with some justification, that the plea of Res Judicata should be taken by a formal application. It is for this reason that this Court was of the strong view that the 2nd and 3rd Defendants would have opted to fully invoke the provision of Order 51 Rule 14 of the Civil Procedure Rules, 2010 by at least filing both the Replying Affidavit along with the Preliminary object which would have enabled them to clearly bring out all these issues of facts which are a great impediment in an objection which is based purely on law. Further, the court stated:-
“For Res judicata to be invoked in a civil matter, the following elements must be demonstrated:
a) There is a former judgement or order which was final.
b) The judgement or order was rendered by a court having jurisdiction over the subject matter and the parties, and
c) There must be between the first and second action identical parties, subject matter and cause of action.”
39. In the case of:- “Gurbachan Singh Kalsi – Versus - Yowani Ekori Civil Appeal No. 62 of 1958” the former East African Court of Appeal stated as follows:-
“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 a 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 judgement, 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…No more actions than one can be brought for the same cause of action and the principle is that where there is but one cause of action, damages must be assessed once and for all…A cause of action is every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgement of the court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved.”
40. On whether the doctrine is applicable in constitutional matters, Onguto J in the case of:- “William Kabogo Gitau – Versus - Ferdinand Ndung’u Waititu [2016] eKLR” held as follows:
“In the cases of Aggrey Chiteri – Versus - Republic [2016] eKLR and Edward Okongo Oyugi & 2 others – Versus - Attorney General [2016] eKLR, this court held that the doctrine of res judicata applied with even force to constitutional litigation though it was important that caution is exercised lest a person whose rights were being violated a fresh was unjustly locked out from the wheels and seat of justice. So said the court in Edward Okongo Oyugi & 2 others – Versus - The Attorney General [supra]:11The application of the principle of res judicata has the potential of locking out a person from the doors of justice or even reaching the out-stretched arms of justice if the claim is disposed of without venturing into the merits. Consequently, the factors and circumstances ought always be nit-picked and caution exercised. The court ought to be in no doubt that the principle is applicable to the facts and circumstances of each case.”
41. I have had the chance to peruse a myriad of case law discussing the issue of applicability of the res judicata doctrine in constitutional matters. What is clear is that the courts have differed on the issue with each having its opinion on how to go about the issue. However, in my view, the constitutional court primarily deals with exercise of review of constitutional issues in a litigation to ensure actions and laws comply with the constitution. It is for this reason that my take on the issue is that, although the principles of res judicata should be invoked in a constitutional matter but with “extra and rare of rarest caution based on the circumstances of a case” in order to not abuse the court process but at the same time to prevent a blatant violation of rights. I would call it an act of delicate and circumspect balancing of judicial and parties interests.
42. In saying so, I am guided by the dictum in the case of:- “Wycliffe Gisebe Nyakina – Versus - Attorney General & another [[2014] eKLR”, where Gikonyo, held as follows: -
“I reiterate the sentiments above and I must also state 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. That being my finding and looking at the petition before me, I do not think that it is res judicata and I will say why shortly.”
43. In view of this legal reasoning, the surrounding facts and the given circumstances, therefore, it is my own assessment and finding that the application by the 1st Respondent/Applicant herein must succeed.
ISSUE No. b). If so in [1] above, whether the tenets of the doctrine of Res Judicata have been met and what orders should issue
44. Under this Sub – heading, the Court will proceed to apply these legal principles to the instant case. I have perused the judgement in “Mombasa High Court Misc. Civil Application No.19 of 2012 Karsan Velji Velani (Suing as The Administrator of the Estate of Velji Parbat) – Versus - County Council of Kwale Chief Land Registrar Commissioner of Land & another [2014] KEHC 6966 (KLR)”. My attention has been drawn to prayer no 3 of the judicial review application and where the 1st Respondent/Applicant herein sought for an order of the Prerogative Writ of “Mandamus” to compel the then County Council of Kwale and the Chief Land Registar to forthwith register the land Certificate of Title thereof in the name of the 1st Respondent/Applicant herein for a term of 66 years from 1st January 2009 as per the County Council of Kwale resolution in minute no 28/93 of the full council meeting held on 21st July 1993.
45. In his judgement, Justice Mukunya quashed the decision by the County Council of Kwale to grant the lease for 33 years commencing 1st January 2009 for 400 acres and instead withheld the earlier decision to lease the suit property of 12ooacres for a lease of 66 years starting 1st January 2009. The order to have the suit property registered in the names of the 1st Respondent was also approved by the court.
46. The court has also taken time to go through the Judgement in the case of:- “Nairobi High Court Petition No. 491 of 2014 Karsan Velji Velani - Versus - The National Land Commission (2015) eKLR” where, the 1st Respondent/Applicant filed the Petition challenging the National Land Commission’s Public Notice titled ‘Expiry of Leases and Revocation to County Government Kwale-Tiwi Block 11, 12, 18 and 12225 KIDOMAYA/LUNGALUNGA’ posted in “the East African Standard” Newspaper of 19th September, 2014. The said Notice revoked the Petitioner’s lease over Plot No. L.R 12224 (the suit property).
47. The 1st Respondent/Applicant specifically sought for the following orders before court”
“(a) The Petitioner prays this Honourable Court be pleased to remove into this Court and quash the Public Notice published in the Standard Newspaper of 19th September 2014 in toto. (sic)
(b) The Petitioner also prays that the Hon. Court be pleased to prohibit the Respondent from looking into or in any way whatsoever interfering with the property under lease by the Petitioner for the extended duration of the lease.
(c) The Petitioner prays that the Honourable Court be pleased to declare that the Petitioner is entitled to receipt of the extended lease and signing of its certificate of lease.
(d) Costs of the Petition to the Petitioner.
(e) Any other relief the Honourable Court may be pleased to grant.
(f) Declaration that the Public Notice by the Respondent was both irregular, unreasonable, and procedurally unfair contrary to Article 47 of the Constitution.”
48. The court in its analysis of the issue in the Petition discussed at length whether the 1st Respondent/Applicant held a lawful and indefeasible title to the suit property in order for his rights to be enforced as granted under the provision of Article 40 of the constitution. The court made a finding that the issue of extension of the lease had been resolved by the High Court in Mombasa. The court stated that the publication of the notice was an affront of the 1st Respondent/Applicant’s rights and an abuse of the Fair Administrative Actions Act mores specifically on the right to be heard. The court after consideration of the Petition made the following final orders;
(a) An order be and is hereby issued removing into this Court and quashing the Public Notice published in the East African Standard Newspaper of 19th September 2014 revoking the Petitioner’s Lease over Plot No. L. R.12224.
(b) A Declaration be and is hereby issued that the Public Notice aforesaid by the Respondent was both irregular, unreasonable, and procedurally unfair contrary to Article 47 of the Constitution.
a) Now, coming back to the instant Petition dated 2nd April 2025 and which forms the bedrock of the application subject of this ruling. The Petitioner seeks for the following orders from court:-
b) A declaration that your humble Petitioners rights as enshrined under Articles 40[3] and 47[1] of the constitution of Kenya 2010 and the reversionary rights of the petitioners to all county land within Kwale county and the Land Act No 6 of 2012 have been violated by the 1st Respondent.
c) A declaration that the 1st Respondent is illegally in occupation of the suit land LR No 12224 Lunga Lunga measuring 1500 acres and that they should immediately surrender it to the petitioner to use it in public interest. In default an order of eviction of voluntary surrender an order of eviction be issued for the whole land.
d) The court be pleased to review and interprete the nature of orders that were sought and granted in judgment delivered on 14th February 2012 in Mombasa Judicial Review Miscellaneous Application No 19 of 2012 Karsan Velji Velani [suing as the administrator of the estate of Velji Parabat] Versus County Council of Kwale, Chief Land Registrar and commissioner of lands.
e) A permanent injunction order restraining the Respondents jointly and severally either by themselves, their servants, agents and or proxies including any other person or entity acting under their direction or instructions from effecting any evictions, threats to evictions or forceful evacuation of the petitioner and all local community members currently residing and or resettling on the suit land LR No 12224 Lunga Lunga constituency in Kwale County
f) An order conserving the suit property by ensuring the petitioner and all other squatters remain on the property without being evicted pending hearing and determination of the petition herein or until the court pronounces itself on this matter.
g) Costs of the petition to be borne by the Respondents.
49. The court has taken time to appraise itself with the history of the facts culminating to the dispute between the parties herein. It is clear that the 1st Respondent/Applicant’s father had previously been granted a 27 years lease and after its expiry, the latter applied for an extension of the said lease in the year 1993. The County Council of Kwale in its Full Council Meeting held on 21st July, 1993 approved the extension for a further 66 years commencing 1st January 2009, but with certain conditions to wit, that the Petitioner surrenders 185 acres for settlement of squatters and a further 115 acres to the County Council for its development agenda. The 1st Respondent accepted the conditions and implemented them.
50. Subsequently, the Commissioner of Lands on 4th January 1996 wrote to the 1st Respondent’s father confirming that the request for extension of the lease had been approved subject to him fulfilling the stipulated conditions. On 7th September, 2007, the County Council of Kwale wrote to the District Commissioner, Kwale, informing him that the 1st Respondent/Applicant’s late father’s lease to the suit property had been renewed.
51. The 1st Respondent/Applicant’s father then proceeded to fulfill the set conditions and sub-divided the original land into three. He thereafter obtained the Deed Plan No. 189817 being for the 185 acres for squatters’ settlements, Deed Plan No. 284110 being for the 115 acres to be surrendered to the County Council of Kwale and Deed Plan No. 884111 to be registered in the 1st Respondent’s name. He also surrendered the original lease documents and paid requisite surrender lease fees to allow issuance of new leases.
52. On 20th December, 2010 the County Council of Kwale through its Trade, Planning and Marketing Committee allegedly purported to alter the decision of the Full Council and instead granted the 1st Respondent’s father 400 acres out of the 1500 acres of the suit property for a lease period of 33 years. This decision was successfully contested in “Mombasa High Court Misc. Civil Application No.19 of 2012 Karsan Velji Velani (Suing as The Administrator of the Estate of Velji Parbat) – Versus - County Council of Kwale Chief Land Registrar Commissioner of Land & another [2014] KEHC 6966 (KLR”. The purported notice by the National Land Commission to revert back the land to the Petitioner herein was also successfully contested and as it stands the suit property is in the names of the 1st Respondent/Applicant.
53. From the above history, it is clear that the 1st Respondent/Applicant is currently in occupation and use of the suit property. It is also clear that the decision by the County Council of Kwale in its full Council Meeting held on 21st July, 1993 to approve the extend a further 66 years commencing 1st January 2009, but with certain conditions to wit, that the Petitioner surrenders 185 acres for settlement of squatters and a further 115 acres to the County Council for its development agenda was implemented. As it stands, the Petitioners have 115 acres in their use and the squatters have 185 acres.
54. The prayers as crafted in the Petition allude to a situation where the 1st Respondent/Applicant has in some way demonstrated the intention to evict the Petitioners and the Squatters and which in my opinion is not the case. A reading of the Judgment by Hon. Judge Mukunya conclusively cements the registration of the suit property of 1200 acres in the names of the 1st Respondent/Applicant as per the meeting of 21st July 1993, the issue of ownership has thus been conclusively dealt with and I have not come across any appeal to the said decision. Efforts were made through the notice by the National Land Commission to revert the land back to the Petitioner but this position was challenged by Court through a Court Order.
55. What is being contested by the Petitioner in the instant Petition are issues that have clearly been discussed in the two previous matter and concluded. Whatever is before court is a ploy to clothe the contest as to ownership of the suit property with a Constitutional Petition alleging abuse of rights to ownership of property and it is evident that “the doctrine of Constitutional avoidance” is being invoked. However, that will not form part of the discussions herein as the same is an orbiter by the court in its observations.
56. It is my firm belief, and I strongly reiterate that the issues with regards to the use, occupation and ownership of the suit property have been ably dealt with by the previous courts. The Petitioner has called upon this court to review the Judgement in the judicial review proceedings terming the orders as ambiguous. I do not wish to delve into that matter at all as the court issuing the orders was a court of equal status and revisiting its orders in order to interpret the context in which they were made is clearly not the mandate of this court under the provision of Article 165 ( 5 ) of the Constitution of Kenya, 2010. I advise the Petitioner to consider raising these pertinent issues before the said specific Courts of Law which have competent original and unlimited Jurisdiction to hear and make determination.
57. I believe the 1st Respondent/Applicant has demonstrated that indeed the instant Petition is res judicata. It is also proper for this court to mention that the Petitioners actions amount to abuse of the court process and litigation as a whole. As has been said time and again, litigation must come to an end. I concur with the sentiments of Mativo J in “Satya Bhama Ghandi - Versus - Director of Public Prosecutions & 3 Others [2018] KEHC 6100 [KLR] where abuse of the court process was discussed as follows:-
“The situation that may give rise to an abuse of court process are indeed in exhaustive, it involves situations where the process of court has not been or resorted to fairly, properly, honestly to the detriment of the other party. However, abuse of court process in addition to the above arises in the following situations: -
(a) Instituting a multiplicity of actions on the same subject matter, against the same opponent, on the same issues or multiplicity of actions on the same matter between the same parties even where there exists a right to begin the action.
(b) Instituting different actions between the same parties simultaneously in different court even though on different grounds.
(c) Where two similar processes are used in respect of the exercise of the same right for example a cross appeal and respondent notice.
(d) Where an application for adjournment is sought by a party to an action to bring another application to court for leave to raise issue of fact already decided by court below.
(e) Where there no iota of law supporting a court process or where it is premised on recklessness. The abuse in this instance lies in the inconvenience and inequalities involved in the aims and purposes of the action.
(f) Where a party has adopted the system of forum-shopping in the enforcement of a conceived right.
(g) Where an appellant files an application at the trial court in respect of a matter which is already subject of an earlier application by the respondent at the Court of Appeal.
(h) Where two actions are commenced, the second asking for a relief which may have been obtained in the first. An abuse may also involve some bias, malice or desire to misuse or pervert the course of justice or judicial process to the irritation or annoyance of an opponent”.
ISSUE No. c). Who bears the costs of the application dated 4th July 2025?
58. It is now well established that the issue of Costs is at the discretion of Court. Costs mean the award that a party is granted at the conclusion of any legal action or proceedings. The proviso of the provision of Section 27 ( 1 ) of the Civil Procedure Act Cap. 21 provides that costs follow the event. ). It means a successful party should ordinarily be awarded costs of an action.
59. Suffice it to say, the case before Court being a Constitutional Petition, Rule 26 (1) and (2) of the Constitution of Kenya (Protection of Rights and fundamental Freedoms practice and Procedure Rules 2013) provides :-
“26. (1) The award of costs is at the discretion of the Court.
(2) In exercising its discretion to award costs, the Court shall take appropriate measures to ensure that every person has access to the Court to determine their rights and fundamental freedoms.”
60. This principle encourages responsible litigation and motivates parties to pursue valid claims. See the cases of “Harun Mutwiri – Versus - Nairobi City County Government [2018] eKLR” and “Kenya Union of Commercial, Food and Allied Workers – Versus - Bidco Africa Limited & Another [2015] eKLR”, the court reaffirmed that the successful party is typically entitled to costs, unless there are compelling reasons for the court to decide otherwise. In the case of “Hussein Muhumed Sirat – Versus - Attorney General & Another [2017] eKLR”, the court stated that costs follow the event as a well-established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances.
61. Further in “John Harun Mwau & 3 Others – Versus - Attorney General & 2 Others [2012] eKLR”, the Court held that in public interest litigation, “the general rule that costs follow the event does not apply with equal force.” Similarly, in “Kenya Bus Services Ltd & Another – Versus - Minister for Transport & 2 Others [2005] eKLR”, the Court observed that “in matters of public interest litigation, courts are inclined to adopt a liberal approach to costs.”
62. While a court may depart from the general rule that costs follow the event, such departure can only be for good reasons as was explained by the Supreme Court in Jasbir Singh Rai & Others vs Tarlochan Rai & Others (2014) eKLR”.
63. In the instant case, the Honourable Court has found that the 1st Respondent/Applicant has successfully proved his case as against the Petitioner/Respondent herein. In the given circumstances, therefore, I see no reason why the 1st Respondent/Applicant should be denied his costs, and proceed to award him the said costs.
VI. Conclusion and Disposition
64. Consequently, having caused an in-depth analysis of the framed issues herein, based on the Preponderance of Probabilities and the balance of convenience, the Honourable Court proceeds to make the following orders: -
The application dated 4th July 2025 is merited and is hereby allowed in the following terms; -
a) THAT the Notice of Motion application dated 4th July, 2025 be and is hereby found to be meritorious.
b) THAT the Constitutional Petition dated 2nd April 2025 be and is hereby struck out for offending the Doctrine of Res Judicata to the previous High Court decisions over the same subject matter.
c) THAT costs of the application dated 4th July, 2025 and the Petition dated 2nd April, 2025 to be awarded to the 1st Respondent/Applicant to be borne by the Petitioner/Respondent herein.
IT IS ORDERED ACCORDINGLY.
RULING DELIVERED THROUGH THE MICRO – SOFT TEAMS
VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS …..…16TH …….. DAY OF…...…APRIL……….2026
Ruling delivered in the presence of: -
a) M/s. Asmaa Maftah, the Court Assistant.
b) M/s. Owuor Advocate for the Petitioner/Respondent.
c) M/s. Bande holding brief for Mr. Keddy Advocate for the 1st Respondent/Applicant.
d) No appearance for the 2nd & 3rd Respondents.