Eli & 2 others v Emase (Environment and Land Case E039 of 2025) [2026] KEELC 4699 (KLR) (15 July 2026) (Ruling)

REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT BUSIA ELC CASE NO. E039 OF 2025 SILFANO OKUSEGERE ELI………………………………….…1ST PLAINTIFF SANTULINUS OMWENE EMASE……………………………...2ND PLAINTIFF GLADYS ATWANI…………………………………………….…..3RD PLAINTIFF JOHN VERSUS AWOLI EMASE……………………………………………...DEFENDANT RULING 1. By a plaint dated 9th September 2025, the plaintiffs instituted the instant suit seeking judgment against the defendant for: - a) A declaration that the defendant holds title for the parcel of land known as L.R No. South Teso/Chakol/936 (hereafter referred to as the suit BUSIA ELC NO E039 OF 2025 – RULING 1 | P a g e property) and the subdivisions emanating therefrom namely L.R Nos. South Teso/Chakol/2235, 2236, 2237, 2238, 2239, 2240, 2241 and South Teso/Angoromo/2242 in trust for his brothers; b) An order of cancellation of all titles derived from the parcel of land known as L.R No. South Teso/Chakol/936 and the subdivisions emanating therefrom namely L.R Nos. South Teso/Chakol/2235, 2236, 2237, 2238, 2239, 2240, 2241 and 2242 and their reversion to allow their equal share amongst the 7 sons of Awilo Emase to wit 1.46 hectares each; c) An order mandating the County Land Registrar and County Surveyor to visit L.R No. South Teso/Chakol/936 and carry out distribution in line with (b) above; d) That the OCS Adungosi Police Station to provide security during the said exercise; e) Costs of the suit. BUSIA ELC NO E039 OF 2025 – RULING 2 | P a g e 2. As can be discerned from the averments/contentions on the face of the plaint, the plaintiffs’ case is premised on the ground that the defendant holds the suit property in trust for himself and his brothers. 3. The plaintiffs accuse the defendant, who was the administrator of the estate of their father, Awali Emase, of having abused his trust in administration of their father’s estate comprised in the suit property. 4. The defendant did not file a defence to the suit but filed a notice of preliminary objection dated 24th April 2024 through which he seeks to strike out the plaintiffs’ suit in limine on the ground that the suit is res judicata succession proceedings of the estate of Awali Emase. 5. According to the defendant, the plaintiffs are estopped from re- litigating or re-opening the same matters through a fresh land claim in this forum; that the plaintiffs lack locus standi to challenge matters relating to succession and estate distribution outside the framework of the Law of Succession Act, Cap 160 BUSIA ELC NO E039 OF 2025 – RULING 3 | P a g e Laws of Kenya and that this court sitting as an Environment and Land Court, lacks jurisdiction to entertain or overturn Succession Court decisions or reopen questions relating to the administration and distribution of estates. 6. Maintaining that the instant suit is a disguised attempt to reopen settled succession matters, the defendant urges this court to strike out the suit in limine for offending the provisions of Sections 1A, 1B and 3A of the Civil Procedure Act. 7. In a rejoinder, the plaintiffs filed grounds of opposition dated 27th April 2026 in which they contend that the preliminary objection is a clear indication that the defendant does not understand at all what is required in a preliminary objection. 8. The preliminary objection was disposed of by way of written submissions. 9. Despite being given an opportunity to file submissions, at the time of writing this ruling, the defendant’s submissions had not been filed in the CTS and/or placed in the court record. BUSIA ELC NO E039 OF 2025 – RULING 4 | P a g e 10. In their submissions dated 20th May 2026, the plaintiffs have made reference to the provisions of Section 7 of the Civil Procedure Act and the decision in Mukisa Biscuits Manufacturing Co. Ltd vs. West End Distributors Ltd (1969) EA 696 and submitted that in the instant case, the defendant expects the court to go fishing in the archives for proof that there existed an earlier case between the parties which the law does not allow. 11. From the grounds taken up in support of the preliminary objection namely, the suit is res judicata the Succession Proceedings in respect of the estate of Awali Emase, the objection and the submissions filed by the plaintiff in respect thereof, the issue for the Court’s determination is whether the issue of res judicata is a pure point of law that can be taken up as a preliminary objection, in the manner the defendant has done. 12. Concerning that issue, I will not re-invent the wheel but rely on the persuasive decision in the case of Henry Wanyama Khaemba vs Standard Chartered Bank Ltd & another BUSIA ELC NO E039 OF 2025 – RULING 5 | P a g e (2014) e KLR where it was held that one cannot raise a ground of res judicata by way of preliminary objection and that the best way to raise a ground of res judicata, is by way of notice of motion where pleadings are annexed to enable the court determine whether the current suit is res judicata. 13. Because evidence is required to determine whether the current suit is res judicata, the suits or proceedings contemplated in the defendant’s objection and which suits/proceedings have not been revealed to the Court, I find the preliminary objection taken up by the defendant to be unmaintainable as there no pleadings by the defendant admitted either expressly or by clear implication by the plaintiff on which the preliminary objection can hinge. 14. As to whether this court has jurisdiction to hear and determine the issue raised in the suit, the plaintiffs have premised their suit on the issues of trust, which issue the Succession Court did not have jurisdiction to hear and determine. 15. The upshot of the foregoing is that I find the preliminary objection taken up by the defendant to be lacking in merits and BUSIA ELC NO E039 OF 2025 – RULING 6 | P a g e dismiss it with costs to the plaintiffs. Ruling dated, signed and delivered at Nyahururu this 15th day of July, 2026 through Microsoft teams in the absence of the parties. L. N. WAITHAKA JUDGE Court Assistant: Bedan BUSIA ELC NO E039 OF 2025 – RULING 7 | P a g e