Amendi v Ombuge & 2 others (Environment and Land Appeal E008 of 2023) [2026] KEELC 3244 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that res judicata cannot be argued through a preliminary objection; you must file a motion with supporting evidence.
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 suit in the lower court was res judicata in view of MC ELC Case No. E013 of 2022 and whether a preliminary objection was a competent vehicle for raising that plea
- 2.Whether the trial court erred in failing to determine the merits of the application for temporary injunction dated 4th October 2022
- 3.Whether the application for temporary injunction dated 4th October 2022 was merited
Key legal issues
#Whether res judicata can be raised by preliminary objection
No. Res judicata requires proof of evidence establishing identity of parties, subject matter, issues and finality of the former decision; it is not a pure point of law and a preliminary objection raising it is incompetent and liable to be struck out.
Section 7 of the Civil Procedure Act embodies the doctrine, whose elements are identity of issues, parties, subject matter and cause of action, a final judgment, a judgment on merit, and a competent court. Proof requires evidence of the pleadings and decision in the former suit, attached to a notice of motion with a supporting affidavit. A preliminary objection only raises a pure point of law on undisputed facts; here the record did not disclose where the former suit was filed, its parties, issues or decision, so the plea could not succeed on the objection.
Whether the trial court erred in failing to determine the application for temporary injunction
Yes. Having dismissed the preliminary objection, the trial court should have proceeded to determine the merits of the application dated 4th October 2022, and its silence on it was erroneous.
The impugned ruling addressed only the preliminary objection and was silent on the injunction application. The first appellate court, empowered by section 78(2) of the Civil Procedure Act to exercise the same powers as the original court, proceeded itself to determine whether the injunction application was merited under Order 40 Rule 1 of the Civil Procedure Rules and the Giella v Cassman Brown principles.
Whether the temporary injunction application dated 4th October 2022 was merited
No. The applicant failed to demonstrate a prima facie case with chances of success; the alleged loss of Kshs. 50,000/= is quantifiable and compensable in damages, and the balance of convenience favours declining the injunction.
The grievance was the alleged opening of a non-existent access road before payment of a balance of Kshs. 50,000/=. There was no claim against the title, and the allegation that no access road existed was not demonstrated by a map or mutation form. Since upon survey no parcel remains inaccessible, judicial notice supported the conclusion that the balance of convenience tilts against granting an injunction.
Whether witness statements and documents filed without a defence have evidential foundation
Yes. Since evidence follows pleadings under Order 5 Rule 7, witness statements and documents filed with no defence on record are documents without foundation and legal import.
The appellant filed witness statements and a list of documents but no defence opposing the suit or replying affidavit exhibiting evidence of the previous suit. Because witness statements and documents accompany a defence, those filed without one lacked legal foundation, reinforcing the conclusion that the res judicata plea lacked evidential support.
Legal principles established
#- The elements of res judicata cannot be proved by way of a preliminary objection; a party relying on the plea must file a notice of motion supported by evidence of the pleadings and decision in the former suit
- A question of res judicata requires evidence and is therefore not a pure point of law capable of being raised through a preliminary objection
- A first appellate court must re-evaluate, re-assess and re-analyze the evidence on the record and determine whether the conclusions of the trial court should stand, giving reasons either way
- A court ought to determine all the issues raised before it; failure to determine the merits of a pending application after dismissing a preliminary objection is erroneous
Court orders
#- 1.The decision of the lower court made on 24th January 2023 is set aside and substituted with orders striking out the appellant's preliminary objection dated 7th October 2022
- 2.The respondent's application dated 4th October 2022 for temporary injunction is dismissed
- 3.Each party to bear its own costs of the appeal and the costs of the application dated 4th October 2022 in the court below
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Senior Principal Magistrate's Court, Mumias (Environment and Land Court)
- SPMC ELC Case No. E56 of 2022
- Jurisdiction invoked
- First appellate jurisdiction under section 78(2) of the Civil Procedure Act
Relief refused
#Dismissal of the application dated 4th October 2022 with costs as sought by the appellant
The court instead struck out the preliminary objection and itself dismissed the injunction application, but made no order as to costs, ordering each party to bear its own costs
Temporary injunction restraining the respondents from visiting parcel Nos. N.W.Kholera/4862 and 4863
The respondent failed to demonstrate a prima facie case with chances of success; any loss is quantifiable at Kshs. 50,000/= and compensable in damages; balance of convenience favours declining the injunction
Costs
Each party shall bear its own costs of the appeal and the costs of the application dated 4th October 2022, in the court below.
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 question of res judicata requires evidence to prove and therefore is not a pure point of law capable of being raised through a preliminary objection.
Those elements cannot be proved by way of a preliminary objection. To prove the above elements, a defendant ought to file a Notice of motion with a supporting afidavit upon which evidence of a decision in respect of a previous suit together with any other relevant evidence including pleadings are attached.
A court ought to determine all the issues raised before it. In this case, the trial court fell in to error when it failed to determine the merits of the application dated 4th October 2022.
In the premises, this court hereby sets aside the decision of the lower court made on 24th January 2023 and substitutes it with orders striking out the appellant's preliminary objection dated 7th October 2022. In addition, the court hereby dismisses the respondent's application dated 4th October 2022.
In view of the court's findings above, this court orders that each party shall bear its own costs of the appeal and the costs of the application dated 4th October 2022, in the court below.
Issues in the judgment
#The party role labels in the judgment are internally inconsistent: the respondent's application is said to seek to restrain 'the appellants', and the supporting affidavit is described as 'the respondent's grievance' although the respondent was the applicant for the injunction before the trial court
The name of the appellant is spelled inconsistently ('Vincent Ida Amendi' in the memorandum and 'Vincent Idah Amedi' in the plaint description)
The judgment's delivery date reads '20TH DAY OF MAY 2026', which appears anomalous given the appeal record dates of 2023-2024
The judgment does not state its own appeal case number or the full names of the parties in a title heading
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Amendi v Ombuge & 2 others (Environment and Land Appeal E008 of 2023) [2026] KEELC 3244 (KLR)", Case Analysis (2026). Not stated in judgment (appeal against ruling in Mumias SPMC ELC Case No. E56 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3244/eng@2026-05-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.