Wabobo v Kironyo & another (Environment and Land Appeal E177 of 2024) [2026] KEELC 5056 (KLR)
The bottom line
#Kenya's Environment and Land Court allowed a landowner's appeal, ruling that a judgment from a case she had withdrawn from could not block her ownership claim.
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 learned trial magistrate was precluded from determining the question of res judicata at the judgment stage
- 2.Whether the trial magistrate erred in finding the suit res judicata
- 3.Whether the trial magistrate failed to determine the issues she had framed and to consider the evidence on record
- 4.Whether the allegation of bias is made out
- 5.What consequential orders ought to follow
- 6.Costs
Key legal issues
#Whether a trial court may raise res judicata at the judgment stage after a preliminary objection on the same ground was withdrawn
Yes. The preliminary objection was withdrawn, never determined, so there was nothing to reopen. In any event res judicata goes to jurisdiction and may be raised at any stage, even suo motu.
The record showed the 2017 preliminary objection was withdrawn on 16th November 2018 at the 1st Respondent's application; there was no ruling, hence nothing appealed or reopened. Substantively, section 7 of the Civil Procedure Act is mandatory and prohibitory; res judicata deprives the court of jurisdiction, and want of jurisdiction may be raised at any stage, including at judgment and by the court on its own motion. Further, a dismissed preliminary objection often means only that the plea cannot be resolved as a pure point of law because it requires evidence.
Whether the suit was res judicata given the judgment in Milimani CMCC No. 7242 of 2007
No. At the moment the earlier judgment was pronounced the Appellant was no longer a party, her claim had been withdrawn, there was no hearing or determination as between her and the plaintiff, and the subject matter of the two suits may not even be identical.
The earlier suit was withdrawn against the Appellant on 2nd February 2011 on the plaintiff's own application; judgment of 12th April 2011 was on formal proof, unopposed, against the 1st and 2nd defendants only. Identity of parties, hearing and final determination, and identity of subject matter were all wanting, the elements being conjunctive. An order cancelling her certificate made in her absence after withdrawal offended audi alteram partem and Article 50(1).
Whether the trial magistrate failed to determine the framed issues and to consider the evidence
Yes. She determined only the first of three framed issues and the judgment omitted all reference to the 2nd Respondent's witness's evidence.
The magistrate disposed of the suit on a threshold point without addressing the second and third issues despite having heard the whole evidence. The evidence of the 2nd Respondent's advocate witness, based on the company's records and going directly to parcel identity, was nowhere mentioned. A judgment omitting the evidence of one of three witnesses cannot be said to have considered the evidence on record. Grounds 5 and 6 succeeded.
Whether the trial magistrate was biased
No. The allegation was not particularised and was unsupported; error induced by an incomplete presentation is not bias.
Judicial bias must be particularised and established; deciding against a party or being wrong on appeal does not establish it. The magistrate's error was explained by the decree alone being placed before her, which concealed the withdrawal and the nature of the hearing. The court discouraged unfounded bias allegations and rejected ground 7.
The appropriate consequential order
Set aside the dismissal and remit the suit for determination on the recorded evidence before another magistrate, with liberty to recall witnesses or take further evidence.
The trial court made no findings of fact or credibility; the decisive question of parcel identity was unresolved, no surveyor was called and the 1st Respondent's vendor was not called; further evidence, including surveyor evidence, may be needed. Section 78(1)(b) of the Civil Procedure Act and Order 42 rule 24 permit remand with the recorded evidence remaining evidence. Because the magistrate had expressed a concluded view on the threshold question, the suit was to be placed before another magistrate.
Legal principles established
#- Want of jurisdiction may be raised at any stage of the proceedings, including at judgment stage, and may be raised by the court on its own motion; res judicata goes to the competence of the court to try the suit.
- The elements of res judicata are conjunctive, not disjunctive, and the burden of establishing the plea lies on the party who raises it.
- Discontinuance against a defendant is a release, not an adjudication; a plaintiff who withdraws a suit against a defendant cannot rely on a subsequent judgment as res judicata against that defendant.
- A judgment does not bind a person against whom the claim was withdrawn; asserting rights untouched by such a judgment is not a collateral attack.
Court orders
#- 1.The appeal be and is hereby allowed
- 2.The judgment and decree of the Chief Magistrate's Court in Milimani CM ELC No. E1488 of 2018, delivered on 3rd October 2024, be and are hereby set aside
- 3.The suit is remitted to the Chief Magistrate's Court at Milimani, for determination upon the merits on the evidence already recorded, with liberty to the trial court to recall any witness or to receive such further evidence as it may consider necessary in the interests of justice
- 4.The suit shall be placed before another magistrate of competent jurisdiction
- 5.The 1st Respondent shall bear the costs of this appeal; costs in the trial court shall abide the outcome of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court at Milimani
- Milimani CM ELC No. E1488 of 2018
- Jurisdiction invoked
- First appeal under section 78 of the Civil Procedure Act and Order 42 rule 24 of the Civil Procedure Rules, 2010
Relief refused
#Declaration that the Appellant is the legitimate owner of Plot No. 703 on L.R. No. 8469/4 and direction to the 2nd Respondent to facilitate issuance of title
The trial court made no findings of fact; the decisive question of parcel identity was unresolved; the interests of justice may require further evidence; the appeal court is not the appropriate forum to receive it
Costs
The 1st Respondent shall bear the costs of this appeal; costs in the trial court shall abide the outcome of the suit.
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 is res judicata deprives the court of jurisdiction to try it; and want of jurisdiction may be raised at any stage of the proceedings, including at the judgment stage, and may be raised by the court upon its own motion
Discontinuance is a release, not an adjudication
An order purporting to cancel a person's document of title, made in proceedings from which she had been released and of which she had no notice, is made in the teeth of the principle audi alteram partem and of Article 50(1) of the Constitution.
A court cannot assume identity of subject matter in order to shut out the very inquiry by which identity would have to be established.
(i) The appeal be and is hereby allowed. (ii) The judgment and decree of the Chief Magistrate's Court in Milimani CM ELC No. E1488 of 2018, delivered on 3rd October 2024, be and are hereby set aside.
(v) The 1st Respondent shall bear the costs of this appeal. Costs in the trial court shall abide the outcome of the suit.
Issues in the judgment
#The judgment itself notes a discrepancy in the typed proceedings as to the date of the first hearing day
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wabobo v Kironyo & another (Environment and Land Appeal E177 of 2024) [2026] KEELC 5056 (KLR)", Case Analysis (2026). ELC Appeal No. E177 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5056/eng@2026-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.