Musyoki v Musyoki (Environment & Land Case E010 of 2024) [2025] KEELC 3633 (KLR)
The bottom line
#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 Notice of Motion dated 14th November, 2024 is sub-judice
- 2.Whether the same motion is res judicata
Key legal issues
#Whether the Defendant's Notice of Motion dated 14th November, 2024 is sub-judice
The objection failed; the 14th November motion was filed first and the two applications seek totally different reliefs, so sub-judice does not apply
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.
Whether the Notice of Motion dated 14th November, 2024 is res judicata Makueni ELC No. 200 of 2017
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
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.
Whether the Preliminary Objection raises a pure point of law under the Mukisa Biscuit test
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
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.
Legal principles established
#- 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
#- 1.The Preliminary Objection dated 13th December, 2024 is dismissed
- 2.Costs of the Preliminary Objection awarded to the Defendant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to land
Relief refused
#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
Costs
Dismissed with costs to the Defendant
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.
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.
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.
I find no merit in the Preliminary Objection which is dismissed with costs to the Defendant.
Issues in the judgment
#Judgment text contains typographical errors, e.g. 'factus oficio' for 'functus officio' and OCR corruptions such as 'afiect' and 'difierent'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.