Ndembi v Ndembi & another (Land Case E012 of 2014) [2025] KEELC 8661 (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 Preliminary Objection meets the threshold of a true preliminary objection as set in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
- 2.Whether the suit is res judicata in respect of Vihiga SPM Civil Suit No. 18 of 2015
- 3.Whether the Environment and Land Court lacks jurisdiction because the claim falls within succession and probate matters
Key legal issues
#Whether the Preliminary Objection satisfied the Mukisa Biscuit threshold
It did not, because its determination required examination of facts outside the pleadings
Although jurisdiction and res judicata are issues of law, the plaint contains no pleadings relating to the former suit. Determining res judicata would require examining evidence of the former suit, which converts the objection into a factual inquiry inconsistent with the Mukisa Biscuit test that an objection must be decided on pure points of law on assumed pleaded facts.
Whether the suit is res judicata as regards Vihiga SPM Civil Suit No. 18 of 2015
The objection was not proved because the Defendants failed to exhibit the former pleadings and judgment
Res judicata under section 7 of the Civil Procedure Act requires proof of the former suit's pleadings, proceedings and decision. The Defendants relied on an unknown case not forming part of the pleadings, so the court could not establish the identity of parties, issues or relief between the two suits.
Legal principles established
#- A preliminary objection must be based on pure points of law, arise from the pleadings, and cannot succeed if any fact has to be ascertained or discretion exercised
- A party asserting res judicata must exhibit the pleadings, proceedings and decision in the former suit
Court orders
#- 1.The Preliminary Objection is dismissed
- 2.Each party to bear own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya 2010 and section 13 of the Environment and Land Court Act
Relief refused
#Upholding of the Preliminary Objection and striking out of the suit with costs
The Defendants did not exhibit the pleadings, proceedings and decision in the former suit, so the grounds of the objection were not proved
Costs
Each party to bear 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.
I find that the grounds of the Preliminary Objection have not been proved. The Preliminary Objection is hereby dismissed. Each party to bear own costs.
a preliminary objection must be based on pure points of law, must arise from the pleadings, may dispose of the suit if argued as a pure point of law and must be argued on the assumption that all facts pleaded by the opposite party are correct
In order for the court to determine whether the present suit is res-judicata the Defendants needed to exhibit to the court the pleadings, proceedings and decision in the former suit.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndembi v Ndembi & another (Land Case E012 of 2014) [2025] KEELC 8661 (KLR)", Case Analysis (2025). Not stated in judgment (Vihiga; plaint dated 12th July 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8661/eng@2025-12-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.