Mwachenga v Omondi & 3 others (Enviromental and Land Originating Summons 005 of 2023) [2025] KEELC 3260 (KLR)
The bottom line
#The Environment and Land Court at Kwale ruled that a res judicata claim needs evidence, so it cannot be used to strike out a suit at the preliminary stage.
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 objection raised by the Defendant through the Notice of Preliminary Objection dated 14th January 2025 meets the threshold founded in Law and precedents.
- 2.Whether the Defendant is entitled to the relief sought from the filed Notice of Preliminary Objection dated 14th January 2025
- 3.Who will bear the Costs of the Objection?
Key legal issues
#Threshold of a preliminary objection
A preliminary objection must be a pure point of law; where it requires probing of evidence it is misconceived.
The court relied on Mukisa Biscuits, Sir Charles Newbold's articulation and the Supreme Court's Aviation & Allied Workers decision to restate that a preliminary objection is argued on the assumption that all pleaded facts are correct. Because res judicata cannot be determined without ascertaining facts and probing judgments, the objection fails the threshold.
Res judicata as a preliminary objection
The plea of res judicata requires ascertainment of facts such as identity of parties, issues and prior judgments, and so cannot be disposed of at the preliminary stage.
Section 7 of the Civil Procedure Act sets the test for res judicata, which the Supreme Court in IEBC v Maina Kiai held must be satisfied conjunctively. The Plaintiffs disputed the identity of parties and the similarity of the prior suits, and the Defendant annexed none of the prior pleadings, so the court could not determine res judicata without probing evidence.
Costs of the objection
The Plaintiffs are entitled to costs as the objection was defeated.
Section 27 of the Civil Procedure Act provides that costs follow the event. Having failed to meet the legal threshold, the Defendant's preliminary objection was dismissed, making the Plaintiffs the successful party entitled to costs of the objection.
Legal principles established
#- A preliminary objection raises pure points of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised where facts must be ascertained or judicial discretion exercised.
- Whether a suit is res judicata requires probing of evidence and is therefore incapable of being handled as a preliminary objection.
Court orders
#- 1.The Notice of Preliminary Objection dated 14th January 2025 is found to lack merit and is dismissed entirely.
- 2.Mention on 26th June 2025 for a Pre-Trial Conference pursuant to Order 11 of the Civil Procedure Rules, 2010.
- 3.Hearing date of the matter on 29th October 2025 through physical means.
- 4.Costs of the Preliminary Objection awarded to the Plaintiffs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2) of the Constitution of Kenya, 2010 (Environment and Land Court); suit arising from the Civil Procedure Act, Cap. 21
Relief refused
#Striking out of the Plaintiffs' suit as res judicata and for abuse of court process
The objection required probing of evidence to establish res judicata and thus failed the threshold of a preliminary objection; the Applicant also did not annex the pleadings from the former suits
Costs
Costs of the Preliminary Objection awarded to the Plaintiffs.
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.
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.
That the Notice of Preliminary Objection dated 14th January, 2025 be and is hereby found to lack merit and thus it is dismissed entirely.
That for expediency sake, there be a mention on 26th June, 2025 for purposes of conducting a Pre – Trial Conference pursuant to the provision of Order 11 of the Civil Procedure Rules, 2010.
That the costs of the Preliminary objection be awarded to the Plaintifi.
Issues in the judgment
#The judgment is internally inconsistent as to the identity of the party who raised the objection - the introduction says the Applicant raised it while the headings and submissions record the Defendant as applicant and Plaintiffs as respondents, yet one heading refers to 'Written Submissions by the Defendants/Respondents' and another to 'Written Submissions by the Plaintiffs/Respondents'.
The ruling does not disclose its own case number, the title of the suit or the parties' names, only references to prior suits MOMBASA ELC 220 of 2013 and KWALE ELC 75 of 2021.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Mwachenga v Omondi & 3 others (Enviromental and Land Originating Summons 005 of 2023) [2025] KEELC 3260 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3260/eng@2025-04-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.