Lesira v Nenkalash & 2 others; Lesira & 2 others (Interested Parties) (Environment and Land Petition E003 of 2024) [2025] KEELC 5468 (KLR)
The bottom line
#A Kenyan court dismissed a landowner's fresh petition over land already decided in an earlier case, confirming you cannot relitigate settled disputes in a new form.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Petition is res judicata
- 2.Whether the Petitioner is entitled to the relief of temporary injunction as sought in the application
- 3.Who should bear the costs of this application
- 4.Whether there is a difference between grounds of opposition and a preliminary objection
Key legal issues
#Whether the Petition is res judicata
The Petition is res judicata, the subject matter and parties being identical to ELC Kajiado Case No. 443 of 2017 in which a court of equal status endorsed the decree in Kajiado RM Land Case No. 3 of 2012 and ordered the Tribunal award implemented
The court applied the five-part test in Bernard Mugo Ndegwa v James Nderitu Githae as restated by the Supreme Court in KCB v Muiri Coffee Estate: identical issues, same parties litigating under the same title, concurrence of jurisdiction and finality. The subject parcel and parties were the same as in ELC 443 of 2017, where Gicheru J. found the Petitioner's title void and dismissed the suit, ordering the Tribunal award implemented. A constitutional petition could not relitigate those determined issues.
Whether grounds of opposition can raise a res judicata plea in place of a preliminary objection
Yes - a respondent may oppose through a statement of grounds of opposition and/or replying affidavit, and the res judicata plea raised through such documents is properly before the court
Relying on the Supreme Court's decision in John Florence Maritime Services, the court held that a plea of res judicata raised in grounds of opposition and replying affidavits is properly raised, and that a preliminary objection on a point of law may be raised at any stage. The 1st Respondent's grounds of opposition therefore sufficed to raise res judicata despite the absence of a formal preliminary objection.
Whether the Petitioner was entitled to a temporary injunction
No - having found the Petition res judicata, the injunction could not issue
Although the court framed the injunction as an issue, its finding of res judicata disposed of the matter; the Petitioner had no entitlement to interlocutory relief in a petition that could not be entertained. The application and Petition were dismissed in their entirety.
Legal principles established
#- Res judicata applies regardless of the form in which a subsequent suit is brought, including a constitutional petition raising the same issues already determined by a court of competent jurisdiction
- A respondent may oppose an application through grounds of opposition or a replying affidavit rather than a formal preliminary objection
- Once a judgment is entered a party aggrieved must appeal; litigation must come to an end
Court orders
#- 1.The Application and the Petition are dismissed as res judicata
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Not expressly stated; Petition invoking Article 50(1) of the Constitution and remedies under the Land Act and Civil Procedure Act (Order 40)
Relief refused
#Temporary injunction restraining the Land Registrar Kajiado from interfering with, subdividing or cancelling the register of LR No. Kajiado/Kaputiei South/838 pending hearing of the Petition
The Petition and Application were found to be res judicata, the same issues having been determined in ELC Kajiado Case No. 443 of 2017
Costs of the application
Dismissed with no order as to costs
Costs
No order as to costs - each party to bear their own costs
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.
This indeed falls within the confines of res judicata no matter in what shape or form the suit is brought as and it should be shunned upon.
I therefore find that Application and the Petition are res judicata and are hereby dismissed with no order as to costs.
If the Petitioner was aggrieved with the Judgement, her recourse would be on Appeal because once a judgement is entered, it is conclusive. Litigation must come to an end.
A plain reading thus shows that a Respondent can oppose an application either as a preliminary objection or through a statement of grounds of opposition.
Issues in the judgment
#The judgment identifies the application as dated 5th January 2024 in the opening paragraph but later frames the injunction issue by reference to an application dated 20th May 2022
The 1st Respondent states the Tribunal award was given on 18th August and relies on the Environment and Land Court Act to found jurisdiction, but the judgment's own extract shows the court in ELC 443 of 2017 found the title void for being issued contrary to the 2012 decree - the parties characterize the same events differently without the court reconciling the Tribunal's jurisdiction finding directly
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lesira v Nenkalash & 2 others; Lesira & 2 others (Interested Parties) (Environment and Land Petition E003 of 2024) [2025] KEELC 5468 (KLR)", Case Analysis (2025). Kajiado ELC Petition (Notice of Motion dated 5th January 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5468/eng@2025-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.