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ELCDismissedELC suit (Makueni), Preliminary Objection dated 13th December, 2024

Musyoki v Musyoki (Environment & Land Case E010 of 2024) [2025] KEELC 3633 (KLR)

Environment and Land Court
8 May 2025
944 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling on a preliminary objection dated 13th December, 2024 raised by the Plaintiff against the Defendant's Notice of Motion dated 14th November, 2024, in a land dispute over LR. No. Mbooni/Ilani/45, later subdivided into LR. Nos. Mbooni/Ilani/1196 and 1197. The Defendant had earlier sued the Plaintiff in Machakos ELC No. 78 of 2015 claiming six acres and cancellation of the resultant titles; that suit, transferred to Makueni as ELC No. 200 of 2017, was dismissed for want of prosecution on 18th July, 2017. The Defendant then filed a defence and counterclaim in the present suit and moved to join Patrick Mumo Kilonzo, the purchaser of LR. No. Mbooni/Ilani/1197, and to restrain interference with the two parcels. The Plaintiff objected on grounds of locus standi of the intended interested party, sub-judice with his own application dated 29th November, 2024 (restraining burial on LR. No. 1196), and res judicata arising from the dismissed Makueni suit. The court framed two issues: sub-judice and res judicata. It held the 14th November motion was first in time and sought different reliefs, so sub-judice did not apply; and that the earlier dismissal for want of prosecution was not a determination on the merits, so res judicata did not apply. Applying Mukisa Biscuit, the court found no pure point of law and dismissed the preliminary objection with costs to the Defendant on 8th May, 2025.

Questions the Court framed

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

  1. 1.Whether the Notice of Motion dated 14th November, 2024 is sub-judice
  2. 2.Whether the same motion is res judicata

Key legal issues

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01

Whether the Defendant's Notice of Motion dated 14th November, 2024 is sub-judice

Holding

The objection failed; the 14th November motion was filed first and the two applications seek totally different reliefs, so sub-judice does not apply

Reasoning

The 29th November, 2024 application sought to restrain the burial of the Defendant's daughter-in-law on LR. No. Mbooni/Ilani/1196, while the 14th November motion sought joinder of Patrick Mumo Kilonzo and injunctive orders over LR. Nos. 1196 and 1197. Since the 14th November motion was filed earlier and the reliefs differ entirely, the sub-judice principle cannot be stretched to affect it.

p. 2
02

Whether the Notice of Motion dated 14th November, 2024 is res judicata Makueni ELC No. 200 of 2017

Holding

No; Makueni ELC No. 200 of 2017 was dismissed for want of prosecution and was not determined on merit, so res judicata is not established

Reasoning

The earlier suit was dismissed for want of prosecution on 18th July, 2017 and no appeal or review followed. Res judicata requires a prior determination on the merits. Nothing was placed before the court showing an application in that suit was determined on merit, hence the motion of 14th November, 2024 is not caught by res judicata.

p. 2
03

Whether the Preliminary Objection raises a pure point of law under the Mukisa Biscuit test

Holding

It does not; the grounds required ascertainment of facts and did not qualify as a pure point of law, and the objection was dismissed with costs

Reasoning

Applying Mukisa Biscuit Manufacturing Ltd v West End Distributors Ltd, a preliminary objection must raise a pure point of law argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained or judicial discretion exercised. The grounds here required such factual inquiry and failed the test.

p. 3

Legal principles established

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  • The doctrine of sub-judice cannot apply to a filing that was first in time; a later application seeking different reliefs is not caught by sub-judice
  • A suit dismissed for want of prosecution was not determined on merit and cannot found a plea of res judicata

Court orders

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  1. 1.The Preliminary Objection dated 13th December, 2024 is dismissed
  2. 2.Costs of the Preliminary Objection awarded to the Defendant

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land

Relief refused

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Plaintiff's prayer to strike out/dismiss the Defendant's Notice of Motion dated 14th November, 2024 via preliminary objection

The objection did not raise a pure point of law; the motion was neither sub-judice nor res judicata

p. 3

Costs

Dismissed with costs to the Defendant

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.

The Notice of Motion dated 14th November, 2024 was the first in time to be filed and there is no way the principle of subjudice can be stretched to afiect it.
p. 2Sub-judice doctrine
There was nothing placed before court to show that there was an application made in that suit which was determined on merit which will have rendered the application of 14th November, 2024 res judicata.
p. 2Res judicata requires determination on the merit
I find no merit in the Preliminary Objection which is dismissed with costs to the Defendant.
p. 3Final orders/disposition

Issues in the judgment

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minor

Judgment text contains typographical errors, e.g. 'factus oficio' for 'functus officio' and OCR corruptions such as 'afiect' and 'difierent'

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, "Musyoki v Musyoki (Environment & Land Case E010 of 2024) [2025] KEELC 3633 (KLR)", Case Analysis (2025). ELC suit (Makueni), Preliminary Objection dated 13th December, 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3633/eng@2025-05-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.