Jemutai & 4 others v Bittok & 2 others (Environment and Land Case E025 of 2026) [2026] KEELC 4258 (KLR) (9 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT ELDORET** **ELC CASE NO. E025 OF 2026** **GLADYS JEMUTAI ……………............................... 1ST PLAINTIFF** **FRANCIS KIPKORIR LELEI ….............................. 2ND PLAINTIFF** **DAMARIS CHEPCHUMBA …................................. 3RD PLAINTIFF** **MICHAEL CHERUIYOT LELEI ….......................... 4TH PLAINTIFF** **SELINA JEPKOSGEI …........................................ 5TH PLAINTIFF** **VERSUS** **HOSEA BITTOK …………………..………..................… DEFENDANT** **AND** **THE MANAGEMENT COMMITTEE** **KAPSARET ……………………...............… 1ST INTERESTED PARTY** **BONDENI SELF HELP GROUP …….....… 2ND INTERESTED PARTY** **RULING:** 1. The Defendant filed a Notice of Preliminary Objection dated 17th March, 2026, seeking to have the entire suit struck out with costs on the following grounds: - 2. **This Honourable Court has no jurisdiction to entertain or try this suit.** 3. **That the suit herein is Res Judicata, as the matter was heard and finally determined in Eldoret ELC Case No. 414 of 2012, Kimutai Lelei vs Hosea Bittok & 2 Others and judgment delivered on 31st July, 2019. The matter was severally appealed unsuccessfully in the Eldoret Court of Appeal, which appeal was struck out through rulings delivered on 6th May, 2025 and 5th March, 2026 respectively. Notably, the plaintiff in Eldoret ELC Case No. 414 of 2012, Kimutai Lelei vs Hosea Bittok & 2 Others is the father of the plaintiffs herein.** 4. **That the plaintiffs lack locus standi to institute this suit as they have no legal or proprietary interest in the Land Parcel L.R. No. PIONEER/NGERIA BLOCK 1(EATEC)/113. The plaintiffs are claiming hereditary/succession rights to their father’s land yet their father is still alive, further that their father already litigated on the same property and lost the case and the fact that they are agents of their father means they cannot bring a fresh suit over the same subject matter.** 5. **This suit is bad in law, inept, fatally incompetent, unsustainable, scandalous, vexatious, oppressive, an abuse of the court process and is null and void ab initio.** 6. The Preliminary Objection was canvassed by way of written submissions. The Defendant filed his submissions dated 4th May, 2026 while the Plaintiffs filed their submissions dated 30th April, 2026, which I have read, considered and taken into account in arriving at my ruling as hereunder. **Analysis and Determination:** 1. It is my considered opinion that the issues arising for determination are:- 2. *Whether the Notice of Preliminary Objection dated 17th March, 2026 meets the threshold of what amounts to a Preliminary Objection.* 3. *Whether the Preliminary Objection is merited.* 4. *Who should bear the costs of the preliminary objection.* 5. **Whether the Notice of Preliminary Objection dated 17th March, 2026 meets the threshold of what amounts to a Preliminary Objection;** 6. The law on what constitutes a preliminary objection was laid out in the case of ***Mukhisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) E.A. 696***, where the Court defined Preliminary Objection as follows; ***“...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. This position has been reiterated in several cases including by the Supreme Court in the case of [***Aviation & Allied Workers Union Vs Kenya Airways Ltd & 3 Others***](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/judgment/keelrc/2015/1200), **Application No. *50 of 2014 [2015] eKLR*** where it was held as follows; ***“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 to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.”*** 1. From the above decisions, it is settled that a Preliminary Objection can only be raised on a pure point of law, which is argued on the assumption that there is no contest as to the facts. 2. I have carefully considered the 4 grounds in the preliminary objection as well as the rival submissions thereto and it is clear that the preliminary objection herein is mainly anchored on the doctrine of res judicata. 3. Now, the question that follows is whether a preliminary objection premised on the issue of res judicata as provided under section 7 of the Civil Procedure Act meets the criteria of what amounts to a preliminary objection, raised on pure points of law and uncontested facts. 4. The defendant in his submission reiterated that the issues in the present suit were heard and finally determined in the proceedings known as Eldoret ELC Case No. 414 of 2012 vide the judgment delivered on 31.07.2019 and a decree issued on 16.09.2019, where the court pronounced itself on the issue of ownership. 5. He further submitted that where a judgment has been pronounced, then the same is conclusive between the parties to the dispute including their privies. That consequently, the plaintiffs herein being privies to their father, who was the plaintiff in the original suit have no authority and are barred from filing a fresh suit with regards to the same subject matter. 6. On the issue of res judicata, the plaintiffs submitted that the 5 elements to be satisfied in a claim of res judicata is as held in the Supreme Court case of **Independent Electoral and Boundaries Commission vs Maina Kiai & 5 Others**. 7. It is the plaintiffs’ contention that the matters directly and substantially in issue in the present suit are not identical/similar to the matters that were directly and substantially in issue in the previous suit vide the proceedings known as ELC Case No. 414 of 2012. It is their claim that the defendant is under a duty to demonstrate that the specific issues and specific reliefs in the two cases are similar. That the same was not done. 8. It was also submitted that the issues in the previous suit were essentially touching on the ownership of the suit land while the plaintiffs’ claim in the present suit asserts a hereditary interest in the property and seeks to prevent their unlawful eviction from the suit land, thus making the 2 cases fundamentally different. To this end, they argued that the parties in the 2 cases are different and they cannot be regarded as the privies of their father, who was the plaintiff in the previous suit. In conclusion, the plaintiffs maintained that the present suit does not offend the doctrine of res judicata. 9. From the rival submissions, it is evident that the issues raised derive their foundation from factual information and the facts are heavily contested. 10. In the case of ***George Kamau Kimani & 4 Others vs County Government of Trans Nzoia & Another (2014) eKLR***, the Court while dealing with the issue of res judicata raised in a preliminary objection held as follows: - ***“I have considered the points raised by the 1st Defendant. All those points can be argued in the normal manner. They do not qualify to be raised as Preliminary Points. One cannot raise a ground of res judicata by way of Preliminary Objection. 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 to determine whether the current suit is res judicata. Professor Sifuna did not raise the issue of res judicata by way of Notice of Motion. Professor Sifuna only annexed a ruling in respect of a case which was struck out. This is not a proper way of issues which require ascertainment of facts by way of evidence. They cannot be brought by way of Preliminary Objection”.*** 1. It has been held that a preliminary objection must not deal with contested facts or derive its foundation from factual information which stands to be tested by rules of evidence or call for the exercise of judicial discretion. See ***Oraro -vs- Mbaja (2005) 1KLR 141***. 2. Thus, in view of the foregoing and guided by the above decisions, it is my considered opinion that the issues of res judicata will require this court to look into the evidence and ascertain the fundamental elements to be proved in a claim of res judicata and further consider the rival position by parties. To this end therefore, it is my considered opinion that an issue of res judicata is incapable of being considered as a preliminary objection in the sense of the law and the present preliminary objection cannot therefore be sustained. 1. **Whether the Preliminary Objection is merited;** 2. Having held in issue no. (i) above that the present preliminary objection does not meet the criteria of what amounts to a proper preliminary objection as stated in the Mukhis Biscuit case and cannot therefore be sustained, it follows that the same is not merited. **Costs:** 1. It is a well settled principle that costs follow the event unless the court, for good reason directs otherwise. In this case, having held that the notice of Preliminary Objection is not merited I find that the plaintiffs are entitled to the costs. 2. In the upshot, I accordingly find that the Notice of Preliminary Objection dated 17th March, 2026 is **not merited** and is hereby **dismissed** with costs to the plaintiffs. 3. It is so ordered. **DATED**, **SIGNED** and **DELIVERED** at **ELDORET** this **9th day** of **JULY, 2026.** **C. K. YANO** **JUDGE** **Ruling delivered in the presence of: -** Mr. Owuondo for the Plaintiffs/Applicants. Defendant –Hosea Bitok present in person. No appearance for 1st & 2nd Interested parties. Court Assistant – Laban