[2025] KEELC 4002 (KLR)

[2025] KEELC 4002 (KLR)

The court found that the defendant/applicant had not filed a statement of defence, and thus the preliminary objection did not arise from the pleadings as required by law. Furthermore, the issues raised in the preliminary objection involved disputed facts, particularly regarding whether the matter was res judicata or sub judice, which could not be determined without a full hearing. The court relied on established case law that a preliminary objection must be on a pure point of law and cannot be sustained where factual investigation is necessary. Consequently, the preliminary objection was deemed premature and without merit. The court also held that, as the applicant was unsuccessful, it...

Citation
[2025] KEELC 4002 (KLR)
Parties
Plaintiff: Phyllis Jerotich Mutwol; Defendant: Koima Developers Limited
Court
Environment and Land Court
Court Station
Environment and Land Court at Eldoret
Jurisdiction
Kenya
Judgment Date
26 May 2025
Case Number
Environment & Land Case E040 of 2024
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Outcome
preliminary objection dismissed with costs to the plaintiff/respondent
Judges
EM Washe
Legal Topics
Preliminary Objection, Res Judicata, Sub Judice, Jurisdiction, Pleadings, Costs Award
Source Language
English
Civil Procedure Land and Property Preliminary Objection Res Judicata Sub Judice Jurisdiction Pleadings Costs Award

Case Brief

Summary, issues, holding and outcome

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Parties

Phyllis Jerotich Mutwol

Plaintiff

Koima Developers Limited

Defendant

Procedural Posture

Preliminary Objection / Ruling on Preliminary Objection

Legal Issues

  1. 1 Whether the preliminary objection against the present suit is sustainable and merited.
  2. 2 Whether the preliminary objection against the present application is sustainable and merited.
  3. 3 Who bears the costs of the preliminary objection.

Ratio Decidendi

The court found that the defendant/applicant had not filed a statement of defence, and thus the preliminary objection did not arise from the pleadings as required by law. Furthermore, the issues raised in the preliminary objection involved disputed facts, particularly regarding whether the matter was res judicata or sub judice, which could not be determined without a full hearing. The court relied on established case law that a preliminary objection must be on a pure point of law and cannot be sustained where factual investigation is necessary. Consequently, the preliminary objection was deemed premature and without merit. The court also held that, as the applicant was unsuccessful, it...

Court Disposition

preliminary objection dismissed with costs to the plaintiff/respondent

Orders

  • The preliminary objection dated 11.12.2024 is dismissed.
  • The defendant/applicant shall pay the costs of the preliminary objection to the plaintiff/respondent.