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ELCDismissedJudicial Review proceedings re application dated 18th December 2025 (Nakuru)

Republic v Principal Secretary, State Departments of Lands and Housing & 3 others; Kinuthia (Suing on his Behalf and 99 others, Members of Njoro East Mau CBO) (Ex parte Applicant) (Environment and Land Judicial Review Case E006 of 2025) [2026] KEELC 2309 (KLR)

Environment and Land Court
27 April 2026
1,993 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ruled that claims that a case is a repeat of an earlier one cannot be used as a shortcut to end suits without evidence.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nakuru (M. A. Odeny, J) determined a Notice of Preliminary Objection dated 15th January 2026 by the 5th Respondent, directed at the Ex-parte Applicant's application dated 18th December 2025 for leave to apply for judicial review and the ensuing suit. The 5th Respondent raised six grounds: res judicata under Section 7 of the Civil Procedure Act by virtue of Nakuru ELC Case No. 342 of 2024 (Samuel Kirui & 180 Others v The Cabinet Secretary Ministry of Devolution & Another, determined by mediation/settlement adopted as a court order), functus officio, abuse of process, misuse of judicial review as an appeal, incompetence under Section 9 of the Law Reform Act and Order 53 Rule 1 of the Civil Procedure Rules, and want of jurisdiction. The objection was canvassed by written submissions. The 5th Respondent relied chiefly on Section 7 of the Civil Procedure Act and res judicata authorities. The Ex-parte Applicant countered that the objection was founded on facts requiring evidence, that the prior suit concerned identification of beneficiaries while the present suit sought mandamus to produce a final list, and that the court had jurisdiction over judicial review on land matters. The court applied Mukisa Biscuits and Oraro v Mbaja on the nature of preliminary objections, and George Kamau Kimani v County Government of Trans-Nzoia, holding that res judicata cannot be raised by preliminary objection but by notice of motion with pleadings annexed. Noting that the parties disputed the similarity and final determination of the prior suit, the court found the objection lacked merit and dismissed it, with each party bearing their own costs.

Questions the Court framed

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

  1. 1.Whether the 5th Respondent's Preliminary Objection on res judicata and the jurisdiction of this court has merit

Key legal issues

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01

Whether res judicata can be raised by way of preliminary objection

Holding

No - where facts must be ascertained to determine res judicata, it ceases to be a preliminary objection and should be raised by notice of motion supported by affidavit and annexures

Reasoning

The court adopted Mukisa Biscuits and Oraro v Mbaja: a preliminary objection must be a pure point of law on assumed facts. It relied on George Kamau Kimani v County Government of Trans-Nzoia, which held res judicata cannot be raised by preliminary objection but by notice of motion with pleadings annexed. The 5th Respondent's own annexure of the prior judgment showed facts were in dispute.

p. 4
02

Whether the prior suit (Nakuru ELC Case No. 342 of 2024) rendered the present suit res judicata

Holding

This could not be determined on a preliminary objection since the parties disputed whether the prior suit was similar and heard and determined

Reasoning

Both parties disputed that the prior case was similar and was heard and determined. Following Suleiman Said Shabhal v IEBC, res judicata requires adjudication conclusively determining the rights of the parties. That factual inquiry could not be undertaken at the preliminary objection stage without evidence and a hearing.

p. 5

Legal principles established

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  • Res judicata cannot be raised by way of preliminary objection where it requires ascertainment of facts; it must be raised by notice of motion with pleadings annexed.
  • A preliminary objection must be a pure point of law argued on the assumption that all facts pleaded by the other side are correct.
  • To constitute res judicata there must be an adjudication conclusively determining the rights of the parties on the matters in controversy.

Court orders

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  1. 1.The 5th Respondent's Preliminary Objection dated 15th January 2026 is dismissed

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Section 9 of the Law Reform Act and Order 53 Rule 1 of the Civil Procedure Rules (judicial review leave application)

Relief refused

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5th Respondent's request to strike out the suit and application with costs as res judicata and an abuse of process

A plea of res judicata cannot properly be raised by way of preliminary objection where facts must be ascertained; it should have been raised by notice of motion with pleadings annexed

p. 5

Costs

Each party to bear their own costs

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.

Consequently, I find that the 5th Respondent's Preliminary Objection lacks merit and is therefore dismissed with each party bearing their own costs.
p. 5Disposition - dismissal of the preliminary objection
One cannot raise a ground of res judicata by way of preliminary objection. The best way to raise a ground of res judicata is by way of notice of motion where pleadings are annexed to enable the court to determine whether the current suit is res judicata.
p. 5Proper procedure for raising res judicata
It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion.
p. 4Definition of a preliminary objection (Mukisa Biscuits)
Anything that purports to be a Preliminary Objection must not deal with disputed facts and it must not derive its foundation from factual information which stands to be tested by rules of evidence.
p. 5Oraro v Mbaja principle on preliminary objections
This is a flaw in parties looking for short cuts to terminate suits without a hearing. If the 5th Respondent really wanted to raise a proper preliminary objection on points of law, then it should have filed a Notice of Motion, supported by an affidavit and annexures
Criticism of short-cut objections to terminate suits without a hearing

Issues in the judgment

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minor

The judgment inconsistently states the number of parties in the prior suit, variously '180 Others', '780 others' and '180 Others'

minor

Typographical errors in the judgment text, e.g. 'ofiends', 'oficio', 'fiaw', 'difierent', 'afidavit', and the prior case name rendered as 'Samuel Kiwi'

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, "Republic v Principal Secretary, State Departments of Lands and Housing & 3 others; Kinuthia (Suing on his Behalf and 99 others, Members of Njoro East Mau CBO) (Ex parte Applicant) (Environment and Land Judicial Review Case E006 of 2025) [2026] KEELC 2309 (KLR)", Case Analysis (2026). Judicial Review proceedings re application dated 18th December 2025 (Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2309/eng@2026-04-27

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