https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4715

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELCLC. CASE NO. E001 OF 2024** **GRACE AKINYI OMWARE..........................................................PLAINTIFF** **VERSUS** **THERESIA MUENI NDETI** ***(Sued as the administrator of the Estate of*** **ALBERT ATHANAS MAKAU KYAMBO *(deceased)*...............................................................................DEFENDANT** **AND** **JONATHAN MUSYOKA NZAU…..….........INTENDED INTERESTED PARTY** **RULING** **Introduction** 1. The matter before Court is the 1st Defendant's Notice of Preliminary Objection dated 8th June 2026. By that objection, the 1st Defendant invites the Court to strike out the Plaintiff’s suit on the ground that it is *res judicata* by virtue of the judgment delivered in Machakos **ELC (OS) No. 46 of 2019.** 2. The Plaintiff, the 2nd Defendant and the Interested Party take a different view. Their common position is that the present proceedings do not satisfy the requirements of **section 7** of the Civil Procedure Act. They dispute, among other matters, the identity of the parties, the causes of action, the issues determined in the former proceedings and the properties that form the subject of the two suits. 3. The Court directed that the Notice of Preliminary Objection be canvassed by way of written submissions. The Plaintiff and the 2nd Defendant filed written submissions while the Interested Party filed a Replying Affidavit sworn on 16th June 2026 also opposing the Preliminary Objection. **Parties' Positions** 1. The 1st Defendant contends that the present suit is barred by the doctrine of res judicata by virtue of the judgment delivered in **Machakos ELC (OS) No. 46 of 2019** and the subsequent decision of the Court of Appeal in ***Hanningtone Oloo Ogumbo v Albert Makau Kyambo & Another* [2022] KECA 464 (KLR).** 2. It is submitted that ownership of the original parcel, **L.R. No. 12715/374,** was conclusively determined in those proceedings and that the present suit seeks to re-open matters that have already been finally determined by courts of competent jurisdiction. 3. The 1st Defendant further submits that the judgment remains binding upon the parties and those claiming under them and urges the Court to strike out the suit with costs. 4. The Plaintiff opposes the Preliminary Objection. She submits that she was neither a party to, nor an interested party in, Machakos ELC (OS) No. 46 of 2019 and does not claim under any party to those proceedings. 5. The Plaintiff further submits that the statutory requirements prescribed under section 7 of the Civil Procedure Act have not been established and that the plea of *res judicata* is therefore unsustainable. 6. The 2nd Defendant likewise opposes the Preliminary Objection. He submits that the former proceedings concerned a claim founded on adverse possession, whereas the present suit concerns competing proprietary claims arising from alleged subdivisions, subsequent transfers, derivative titles and allegations of fraud. 7. He further submits that he was not a party to the former proceedings, does not claim under any party thereto, and acquired his interest in the suit property after those proceedings had been concluded. Consequently, he contends that his claim could not have been determined in the former suit. 8. The Interested Party opposes the Preliminary Objection through a Replying Affidavit sworn on 16th June 2026. 9. She deposes that neither she, the Plaintiff nor the 2nd Defendant was a party to Machakos ELC (OS) No. 46 of 2019. She further deposes that the former proceedings were founded on a claim for adverse possession and did not determine the proprietary claims now advanced before this Court. 10. The Interested Party further deposes that the parties, the causes of action, the issues for determination and the properties in dispute in the two proceedings are different. She consequently maintains that the doctrine of res judicata is inapplicable and urges the Court to dismiss the Preliminary Objection. **Issue for Determination** 1. Having considered the Notice of Preliminary Objection, the Replying Affidavit, the written submissions and the authorities cited, the Court is of the considered view that the sole substantive issue for determination is whether the Plaintiff's suit is barred by the doctrine of *res judicata* under section 7 of the Civil Procedure Act. 2. Before considering whether the present suit is barred by the doctrine of *res judicata,* the Court must first determine whether the Notice of Preliminary Objection dated 8th June 2026 satisfies the legal threshold of a proper preliminary objection. The law governing preliminary objections is settled. In ***Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696,*** **Law JA** stated: ***"A preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which, if argued as a preliminary point, may dispose of the suit."*** 1. In the same decision, **Newbold P** observed: ***"A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion."*** 1. The Supreme Court in ***Aviation & Allied Workers Union Kenya v Kenya Airways Ltd & 3 Others [2015] eKLR*** affirmed this principle, stating: ***"Thus, a preliminary objection may only be raised on a 'pure question of law'. To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts."*** 1. From the foregoing authorities, it is clear that a preliminary objection must raise a pure point of law arising from the pleadings or by necessary implication therefrom. It must be capable of disposing of the matter without requiring the Court to ascertain disputed facts, evaluate evidence or exercise judicial discretion. 2. The Preliminary Objection before the Court is predicated upon the doctrine of *res judicata.* The doctrine serves the public interest by bringing litigation to finality and protecting parties from being vexed twice over the same cause. 3. The rationale underpinning the doctrine was succinctly explained by the Supreme Court in ***John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others [2021] eKLR,*** where the Court observed: *"****The rationale behind res judicata is based on the public interest that there should be an end to litigation coupled with the interest to protect a party from facing repetitive litigation over the same matter. Res judicata ensures the economic use of Court's limited resources and timely termination of cases. It promotes stability of judgments and predictability, which are essential ingredients in maintaining respect for justice and the rule of law.”*** 1. The doctrine is codified in **Section 7** of the Civil Procedure Act, Cap. 21 of the Laws of Kenya, which provides that: - ***“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. It follows that, before a plea of *res judicata* can succeed, the Court must be satisfied that the statutory requirements prescribed under section 7 have been established. Those requirements are conjunctive. The party raising the plea bears the burden of demonstrating, among other matters, identity of parties or privies, identity of the matters directly and substantially in issue, identity of title and a final determination by a court of competent jurisdiction. 2. The statutory requirements were restated by the Supreme Court in ***John Florence Maritime Services Limited & Another (supra),*** as follows: ***“[86] We restate the elements that must be proven before a court may arrive at the conclusion that a matter is res judicata. For res judicata to be invoked in a civil matter, the following elements must be demonstrated:*** * + 1. ***There is a former Judgment or order which was final;*** 2. ***The Judgment or order was on merit;*** 3. ***The Judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and*** 4. ***There must be between the first and the second action identical parties, subject matter and cause of action.”*** 1. The Supreme Court in ***Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & Another [2016] eKLR,*** further stated: ***“Whenever the question of res judicata is raised, a court will look at the decision claimed to have settled the issues in question; the entire pleadings and record of that previous case; and the instant case to ascertain the issues determined in the previous case, and whether these are the same in the subsequent case.”*** 1. A plea of *res judicata* is capable of determination as a preliminary objection only where the requirements of section 7 of the Civil Procedure Act are evident from facts that are admitted or otherwise beyond controversy. Where the Court has to examine and compare pleadings, proceedings or judgments in order to determine whether those requirements have been established, the objection ceases to be a pure point of law and falls outside the principles stated in ***Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd*.** 2. In the present case, the plea of *res judicata* cannot be determined on the basis of admitted or undisputed facts. The Plaintiff denies that she was a party to, or litigated under any party to Machakos ELC (OS) No. 46 of 2019. The 2nd Defendant likewise disputes that he was a party to those proceedings and contends that the proprietary interest he asserts accrued after they had been concluded. The Interested Party similarly disputes the identity of the parties, the issues and the causes of action in the two suits. 3. Further, the pleadings, proceedings and judgment in Machakos ELC (OS) No. 46 of 2019 have not been placed before the Court. In their absence, the Court is unable to undertake the comparative inquiry necessary to determine whether the conditions prescribed by section 7 of the Civil Procedure Act have been satisfied. As the Supreme Court observed in ***Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & Another*** (*supra),* the application of the doctrine of *res judicata* requires a comparison of the two proceedings. That inquiry is not possible on the material presently before the Court. 4. In effect, the Court is invited to uphold the plea of *res judicata* without the record of the former proceedings. In the absence of those proceedings, the Court is unable to determine whether the statutory requirements of section 7 of the Civil Procedure Act have been satisfied. 5. The approach adopted by this Court is consistent with the reasoning in ***Koit Developers Limited & 7 others v Orapa & another [2024] KEHC 4227 (KLR)****,* where Mabeya J. stated: ***“Though the defendant pleaded that there was a previous suit involving the same parties as those before court, concerning the same issues as the issues raised in the instant suit and seeking similar orders, I note that the pleadings in that suit were not before this Court. It is only by examining those pleadings against those filed in the instant suit that the Court will be able to determine the four corners for res judicata to suffice. Without having the benefit of examining the pleadings in the previous suit, the Court is unable to make a determination on the merits of the preliminary objection.”*** 1. A similar view was expressed by M. Sila J. in ***Nyanyuki v Openda & another [2023] KEELC 20469 (KLR)****,*where he held: ***“It needs to be understood that when a party is raising the plea of res judicata, what he is saying is that there was a previous similar suit… It goes without saying that one cannot determine whether the current suit is similar to the previous suit without first looking at the pleadings and judgment/order(s) made in the previous suit. The only way a court can determine the question of res judicata is by looking at the evidence presented of the previous suit. Thus, where a defendant merely files a preliminary objection stating that there has been a previous suit, there is no way a court can make a decision, for there will be no evidence of the previous suit attached.”*** 1. I fully agree with the reasoning in the foregoing authorities. A plea of *res judicata* is, by its nature, capable of being raised as a preliminary objection because, if established, it brings the proceedings to an end. However, it can only be determined as a preliminary objection where the Court is placed in a position to ascertain, without resolving contested facts or undertaking an evidentiary inquiry, that the requirements of section 7 of the Civil Procedure Act have been satisfied. 2. Where, as here, the plea is advanced through a Notice of Preliminary Objection unsupported by the record of the former proceedings, the Court cannot undertake the comparative inquiry required by law. In those circumstances, the plea cannot properly be determined as a preliminary objection. That is the position in the present case. The pleadings and judgment in Machakos ELC (OS) No. 46 of 2019 are not before Court. Without them, the Court is unable to undertake the comparison required to determine whether the statutory requirements of section 7 of the Civil Procedure Act have been established. 3. It follows that the Notice of Preliminary Objection dated 8th June 2026 does not raise a pure point of law within the meaning of ***Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd*.** The objection is therefore incompetent and cannot be sustained. 4. Consequently, I make the following orders: 5. ***The 1st Defendant’s Notice of Preliminary Objection dated 8th June 2026 is hereby dismissed.*** 6. ***The costs of the Preliminary Objection shall be in the cause.*** 7. ***The suit shall proceed for hearing on its merits.*** It is so ordered. **Delivered and Dated at Machakos this 16th day of July, 2026.** **HON. J. N. KUYIONI** **JUDGE** **16.07.2026** **Ruling delivered virtually through Microsoft Teams Video Conferencing Platform** In the presence of; Josephine Court Assistant. Mr. Jaleny for the Plaintiff/ Respondent Mr. Otiende Omondi for 1st Defendant Ms. Askar holding brief for Mr. Alosa for 2nd Defendant Mr. Ochanda for 2nd Interested Party.