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ELCDismissedELCL E001 OF 2024

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)

Environment and Land Court
27 February 2025
2,738 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The plaintiff, South Eastern Kenya University, filed an application dated 31st January 2024 seeking a temporary injunction restraining the defendant from evicting it from or dealing with L.R. No. 13529, I.R. No. 5739 in Kitui, and suspension of an eviction notice dated 12th September 2023, pending determination of the main suit. The plaintiff claimed the land was donated by the County Council of Kitui on a 99-year lease from 1st October 1976 and inherited as an asset upon its establishment by Legal Notice 102 of 2008 and subsequent charter in 2013. The defendant filed a Notice of Preliminary Objection dated 23rd February 2024 arguing that the suit was res judicata the judgment in NBI ELC No. 136 of 2009 delivered on 11th May 2023, which it said declared the vesting of its assets under Legal Notice 102 of 2008 illegal and unconstitutional, and that the plaintiff's continued stay was trespass. The plaintiff countered that the previous suit concerned a Nairobi property and different issues. Justice L. G. Kimani, applying Section 7 of the Civil Procedure Act and the Mukisa Biscuits doctrine, held that determining res judicata requires comparison of the pleadings and entire records of both suits - a fact-finding exercise outside the scope of a preliminary objection, which must rest on a pure point of law. Relying on Henry Wanyama Khaemba and George Kamau Kimani, the court dismissed the preliminary objection and awarded costs to the plaintiff.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 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. 2.Whether the issues raised can properly be determined by way of a preliminary objection

Key legal issues

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01

Whether the suit is res judicata the judgment in NBI ELC No. 136 of 2009

Holding

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.

Reasoning

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.

p. 5
02

Whether res judicata can be raised as a preliminary objection

Holding

No; it should be raised by notice of motion with pleadings annexed so the other side can respond.

Reasoning

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).

p. 5

Legal principles established

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  • 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

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  1. 1.The Defendant's Notice of Preliminary Objection dated February 23, 2024 is dismissed
  2. 2.Costs are awarded to the Plaintiff

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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

p. 6

Costs

Costs are awarded to the Plaintiff.

Quotable passages

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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.
p. 6procedure for raising res judicata
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.
p. 5res judicata and preliminary objections
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.
p. 5nature of preliminary objections
The Defendant's Notice of Preliminary Objection dated February 23, 2024 has no merit and the same is hereby dismissed.
p. 6disposition
Costs are awarded to the Plaintifi.
p. 6costs order

Issues in the judgment

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minor

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

minor

Misspelling of 'South Eatern University College' in the record

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.