https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5032

### **REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT KAJIADO** **ELC NO. E013 OF 2025 (OS)** **AND** **IN THE MATTER OF CLAIM OF ADVERSE POSSESSION PURSUANT TO SECTION 38 OF LIMITATION OF ACTIONS ACT** **AND** **IN THE MATTER OF TITLE NUMBERS KAJIADO/KISAJU/13652, 13653, 13643, 13655, 13657, 13658 & 13659 BEING SUBDIVIONS OF TITLE NUMBER KAJIADO/KISAJU/13441** **BETWEEN** **JONATHAN KARIONKI TAΥΙΑΙ ................................................................ APPLICANT** **VERSUS** **ALEX SUYIANKA OLE LETΕΙΡΑΝ** **JOYCE NAIRESIAE MOHAMED KIMOJINO** **CHARLES OBADIA SALAPEI LETEIPAN** **DAVE NOAH SITONI LETEIPAN** *(Sued as the Personal Representatives and Administrators of the Estate of SARAH NASEL LETEIPAN alias SARAH NASIEKU LETEIPAN****)*..........................................** **1ST RESPONDENT** **PAULINE SOINTA LETEIPΑΝ .............................................................. 2ND RESPONDENT** **JOYCE NAIRESIAE MOHAMED KIMOJINO ................................... 3RD RESPONDENT** **ALEX SUYIANKA OLE LETEIPAN ..................................................... 4TH RESPONDENT** **PAUL SARONE EDWIN LETEIPAN ..................................................... 5TH RESPONDENT** **JANE SILANTOI LESIEW ...................................................................... 6TH RESPONDENT** **CHARLES OBADIA SALAPEI LETEIPAN .......................................... 7TH RESPONDENT** **LUCY ANNE NASHILU LETEIPAN ..................................................... 8TH RESPONDENT** **QUEEN GREEK CAPITAL HOLDING LIMITED ............................ 10TH RESPONDENT** ### **RULING** ***(In respect of the Preliminary Objection dated 16th December 2025 raised by the 10th Respondent)*** **Introduction** 1. Before this court for determination is the Notice of Preliminary Objection dated 16th December 2025. The objection was filed before this Court by the 10th Defendant/Respondent. 2. The Preliminary Objection is raised against the hearing of the Plaintiff/Applicant's application dated 23rd September 2025 and the Originating Summons of even date filed on 25th September 2025. In the said objection, the respondent maintains that the application dated 23rd September 2025 and the Originating Summons of even date are Res-Judicata: High Court Petition No. 105 of 2010. **Directions** 1. The preliminary objection was canvassed by way of written submissions; the submissions of which have been duly considered in the writing of this ruling. **Analysis and Determination** 1. Having carefully considered the Notice of Preliminary Objection dated 16th December 2025, the written submissions filed by the parties, the pleadings on record, and the applicable law, this Court is of the view that the only one issue that arises for determination is **whether the plea of *res judicata* is properly raised by way of a Preliminary Objection.** 2. The law governing preliminary objections is now well 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. Sir Charles Newbold P. further explained the nature of a proper preliminary objection in the following terms: ***“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. From the foregoing exposition, it is evident that a preliminary objection must be founded on a pure point of law and should not invite the Court to interrogate disputed facts or evaluate evidence. Where the Court is called upon to investigate factual matters or compare evidence from different proceedings, the objection falls outside the ambit of a true preliminary objection. 2. The 10th Respondent's objection is premised on the contention that the present Originating Summons is *res judicata* by virtue of **High Court Petition No. 105 of 2010**. The doctrine of *res judicata* is codified under **Section 7 of the Civil Procedure Act, Cap. 21 Laws of Kenya**, which provides: ***“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. In determining whether a matter is *res judicata*, the court must satisfy itself that the previous suit involved the same parties or parties claiming under them, that the issues directly and substantially in issue are identical, that the parties litigated under the same title, that the previous suit was heard and finally determined, and that it was determined by a court of competent jurisdiction. Such an inquiry inevitably requires the Court to examine the pleadings, proceedings and judgment in the earlier suit and compare them with those in the subsequent proceedings. 2. The question whether a plea of *res judicata* may properly be raised by way of a preliminary objection was directly addressed by the High Court in ***Henry Wanyama Khaemba v Standard Chartered Bank Limited & Another [2014] eKLR***, where the Court held: ***“That re-statement of the limited scope of a Preliminary Objection brings me to the point where I hold that the Preliminary Objection by the 1st Defendant is not a true Preliminary Objection in the sense of the law. The issues of res judicata, duplicity of suits and suit having been spent will require probing of evidence as it is already evident from the submissions by the 1st Defendant. They are incapable of being handled as Preliminary Objections because of the limited scope of the jurisdiction on preliminary objection. Court of law has always had a well-founded quarrel with parties who resort to raising preliminary objections improperly.”*** 1. The Court further observed: ***“Since a Preliminary Objection cannot be raised on disputed facts, it is clear that the question as whether or not the matter is res judicata will require the probing of evidence. The Court finds and holds that what has been raised does not amount to a Preliminary Objection.”*** 1. This Court respectfully adopts the foregoing reasoning. Whether the present Originating Summons is barred by the doctrine of *res judicata* cannot be determined without interrogating the record in **High Court Petition No. 105 of 2010**, examining the pleadings, identifying the parties, comparing the issues in controversy, and ascertaining whether the previous proceedings were heard and finally determined. Those are evidentiary matters which fall outside the limited jurisdiction exercised by the Court when determining a preliminary objection. 2. Accordingly, this Court finds that the plea of *res judicata* raised by the 10th Respondent is not properly before the Court as a preliminary objection. The issue is one that ought to be raised through an appropriate substantive application supported by the relevant pleadings and proceedings from the earlier suit, thereby enabling the Court to undertake the factual inquiry contemplated under Section 7 of the Civil Procedure Act. 3. The inevitable conclusion, therefore, is that the Notice of Preliminary Objection dated 16th December 2025 does not disclose a pure point of law as envisaged in ***Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696***. It is consequently devoid of merit and is hereby dismissed with costs. It is so ordered. **Dated, Signed and Delivered at Kajiado Virtually this 30th Day of July 2026.** **M.D. MWANGI** **JUDGE** **In the virtual presence of:** Mr. Mukeli for the Plaintiff Mr. Kandie for the Defendants Court Assistant: Alex **M.D. MWANGI** **JUDGE**