South Eastern University College v Ukamba Agricultural Institute Limited; County Government of Kitui (Intended Interested Party) (Environment & Land Case E001 of 2024) [2025] KEELC 853 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that a res judicata argument needs full evidence, so it cannot be used to kill a case through a preliminary objection.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the plaintiff's application and entire suit is res judicata by virtue of the judgment in NBI ELC No. 136 of 2009
- 2.Whether the issues raised can properly be determined by way of a preliminary objection
Key legal issues
#Whether the suit is res judicata the judgment in NBI ELC No. 136 of 2009
The question cannot be decided on a preliminary objection because the court would need to examine the pleadings and entire record of the previous suit, a fact-finding exercise outside the scope of a preliminary objection; the objection was dismissed.
Section 7 of the Civil Procedure Act requires comparison of the issues, parties, title, jurisdiction and finality of the previous decision. The court only had the judgment and eviction notice annexed, not the entire record and pleadings of the previous suit. Determining res judicata therefore requires probing of evidence and contested facts, which cannot be done on a pure point of law under the Mukisa Biscuits principle.
Whether res judicata can be raised as a preliminary objection
No; it should be raised by notice of motion with pleadings annexed so the other side can respond.
Following Henry Wanyama Khaemba and George Kamau Kimani, res judicata requires probing of evidence and comparison of pleadings, making it incapable of being handled as a preliminary objection. A preliminary objection must be a pure point of law argued on the assumption that all facts pleaded by the other side are correct (Mukisa Biscuits, as restated in Aviation & Allied Workers Union).
Legal principles established
#- A ground of res judicata cannot be raised by way of preliminary objection because it requires comparison of pleadings and records of the previous suit, which involves contested facts
Court orders
#- 1.The Defendant's Notice of Preliminary Objection dated February 23, 2024 is dismissed
- 2.Costs are awarded to the Plaintiff
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution (Environment and Land Court) - land dispute over L.R. No. 13529, I.R. No. 5739, Kitui
Relief refused
#Striking out of the suit and the Notice of Motion dated 31st January 2024 as sought by the defendant
Res judicata cannot be determined via preliminary objection as it requires probing of evidence and comparison of pleadings; the PO does not qualify as a pure point of law
Costs
Costs are awarded to the Plaintiff.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Having considered the preliminary objection herein, the court finds that all the issues raised therein ought to have been argued by way of an application filed in the normal manner where all the documents mentioned above would be attached to a supporting afidavit.
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.
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.
The Defendant's Notice of Preliminary Objection dated February 23, 2024 has no merit and the same is hereby dismissed.
Costs are awarded to the Plaintifi.
Issues in the judgment
#The previous suit is inconsistently named: 'County Government of Nairobi' in the preliminary objection versus the suit property being in Kitui and the interested party being the Kitui county government
Misspelling of 'South Eatern University College' in the record
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "South Eastern University College v Ukamba Agricultural Institute Limited; County Government of Kitui (Intended Interested Party) (Environment & Land Case E001 of 2024) [2025] KEELC 853 (KLR)", Case Analysis (2025). ELCL E001 OF 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/853/eng@2025-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.