Okaka v Ojango & another (Environment and Land Case E026 of 2024) [2025] KEELC 8259 (KLR)
The bottom line
#The Environment and Land Court in Kakamega dismissed a family land trust suit because the same trust claim had already been decided in an earlier case involving the plaintiff's father.
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 preliminary objection dated 12/05/2025 is a proper preliminary objection on a pure point of law
- 2.Whether this suit is res judicata in view of decisions made in Kakamega HCC Criminal Appeal 14 of 2018 and Kakamega ELC Case No. 66 of 2019
- 3.Whether the applications dated 25/09/2025 and 26/09/2025 for temporary injunctions should be granted
Key legal issues
#Whether the res judicata objection could be raised as a preliminary objection
No - proving res judicata requires evidence of pleadings and decisions in the former suit, so it is not a pure point of law; the preliminary objection was struck out.
Section 7 of the Civil Procedure Act requires an applicant to present evidence of pleadings of a former suit between the same parties or their privies and a decision on the merits by a competent court. Such proof requires evidence; a matter requiring evidence is not a pure point of law. The proper vehicle is a notice of motion with supporting affidavit, giving the opponent an opportunity to rebut. The objection was therefore struck out, though the same ground was fully argued via the notice of motion dated 12/05/2025.
Whether the suit is res judicata vis-à-vis Kakamega HCC Criminal Appeal 14 of 2018
No - the criminal appeal concerned procuring execution of documents by false pretenses, did not determine ownership or trust, and criminal and civil jurisdictions are distinct.
The criminal appeal concerned charges of procuring execution of documents by false pretenses, prosecuted between the State and the defendants; it did not determine whether the suit property was held in trust for the plaintiff. Because a criminal determination over the same subject matter cannot render a civil suit res judicata given the different jurisdiction invoked, no res judicata arose from that appeal.
Whether the suit is res judicata vis-à-vis Kakamega ELC Case No. 66 of 2019 (formerly HCC No. 93 of 2008)
Yes - the question of customary/family trust was directly and substantially raised and determined in the former suit between parties litigating under the same title; the suit is res judicata.
The plaintiff's father had claimed the suit property on the basis of adverse possession and trust; the trust/family-land question was thus directly and substantially in issue and was finally determined by the ELC, a competent court. The plaintiff, as sibling and privy of the former claimant, was litigating under the same title. Dissatisfaction with the former decision did not license a fresh suit; any remedy lay in appeal.
Legal principles established
#- A res judicata defence requires proof by evidence and therefore cannot be raised as a pure preliminary objection; it should be raised by notice of motion supported by affidavit evidence.
- A criminal determination over the same subject matter cannot render a subsequent civil suit res judicata because the jurisdictions invoked differ.
- Res judicata bars a party who stood by while a claim affecting him was litigated, including a sibling who let a family member prosecute the same claim.
Court orders
#- 1.The preliminary objection dated 12th May 2025 struck out
- 2.The suit dismissed as res judicata with costs to the 1st and 2nd defendants
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 under the Environment and Land Court Act (not expressly cited; inherent on the pleadings)
Relief refused
#Plaintiff's application dated 25/09/2025 for temporary injunction restraining eviction from parcel No. Kisa/Wambulishe/2032 and 2033
The suit was dismissed as res judicata, leaving no suit upon which the injunction could be anchored
Defendants' application dated 26/09/2025 for temporary injunction against burial of the plaintiff's deceased brother on the suit property
The issue became moot following dismissal of the suit
Costs
Suit dismissed with costs to the 1st and 2nd defendants
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.
A matter that requires proof by evidence is not a pure point of law capable of being raised through a preliminary objection.
a determination of a criminal matter touching on the same subject matter cannot render a civil suit over the same subject matter res judicata as the jurisdiction invoked in the two instances are difierent being criminal and civil jurisdiction.
It is clear that the question of trust was raised in the former suit and therefore was substantially and directly in issue in the former suit.
Ultimately, I find and hold that this suit is res judicata and I hereby dismiss the same with costs to the 1st and 2nd defendants.
Issues in the judgment
#Application date inconsistency: the plaintiff's injunction application is dated 25/09/2025 in the opening paragraph but referred to as 25/09/2029
Replying affidavit date inconsistency: affidavit dated 13th June 2015 in a 2025 matter
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, "Okaka v Ojango & another (Environment and Land Case E026 of 2024) [2025] KEELC 8259 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8259/eng@2025-11-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.