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Court of AppealAllowedCourt of Appeal Appeal against ELC No. E047 of 2022 ruling

A.A Bayusuf & Sons Limited v Bahola & another (Civil Appeal E019 of 2023) [2026] KECA 622 (KLR)

Court of Appeal
25 March 2026
SKS. Gatevbu KairuAMA. K. MurgorPNP. Nyamweya
2,404 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal reinstated a landowner's lawsuit, ruling that claims of res judicata cannot be decided through preliminary objections when evidence is needed.

What this practically means

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Executive summary

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This Court of Appeal judgment (Mombasa; S. Gatevbu Kairu, A. K. Murgor and P. Nyamweya, JJA; dated 25 March 2026) concerns an appeal against a ruling of the Environment and Land Court (M.A. Odeny, J.) delivered on 17 February 2023, in which the learned Judge upheld preliminary objections on the ground that the appellant's suit, ELC No. E047 of 2022, was res judicata, having been previously determined in Malindi Petition No. 18 of 2012, Malindi E & LC Suit No. 168 of 2012 and Malindi ELC Petition No. 25 of 2019. The suit was struck out with costs. On appeal, the appellant argued that the preliminary objections did not meet the Mukisa Biscuits threshold, that the causes of action and subject matter in the prior suits were distinct, and that the appellant was not a party to the prior suits. The Court of Appeal reviewed the pleadings in the earlier suits and found that the appellant was not a party to ELC No. 168 of 2012 or Petition No. 18 of 2012, and that evidence would be required to link the properties claimed in those suits with the property claimed by the appellant. The court applied the Mukisa Biscuits principle to hold that the matter did not lend itself to disposal by way of preliminary objection. Relying on the Supreme Court's decision in John Florence Maritime Services, the court found that the elements of res judicata were not demonstrated on the face of the record. Regarding ELC Petition No. 25 of 2019, the court held that whether ELC No. E47 of 2022 is res judicata on account of that ruling must be determined upon trial. The appeal was allowed, the ELC ruling was set aside, the preliminary objections were dismissed, and ELC No. E47 of 2022 was remitted to the ELC for hearing before a judge other than M.A. Odeny J., with costs to the appellant.

Questions the Court framed

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

  1. 1.Whether the preliminary objections based on which the appellant's suit ELC No. E047 of 2022 was struck out met the required threshold

Key legal issues

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01

Whether the preliminary objections raising res judicata met the Mukisa Biscuits threshold

Holding

No. The appellant was not a party to ELC No. 168 of 2012 or Petition No. 18 of 2012, and evidence would be required to link the properties in those suits to the property claimed by the appellant, so the matter did not lend itself to disposal by way of preliminary objection.

Reasoning

The court reviewed the pleadings in the prior suits and found the appellant was not privy to ELC No. 168 of 2012 or Petition No. 18 of 2012. There was also no clear basis on the face of the pleadings connecting the parcels of land in those suits with the parcel claimed by the appellant. Determining res judicata would require calling and interrogating evidence, which is incompatible with the narrow, point-of-law nature of a preliminary objection as defined in Mukisa Biscuits.

p. 4
02

Whether the suit was res judicata with respect to ELC Petition No. 25 of 2019

Holding

The question whether ELC No. E47 of 2022 is res judicata on account of the ruling in ELC Petition No. 25 of 2019 must be determined upon trial in ELC No. E47 of 2022, not on a preliminary objection.

Reasoning

The parties in ELC Petition No. 25 of 2019 are the same as in the present matter, and the property appears to be the same despite slight variations in description. However, because the court had found that the prior suits' subject matter vis-à-vis ELC No. E47 of 2022 required evidence, the court declined to make a conclusive finding on res judicata, deferring it to the trial court to avoid embarrassing it.

p. 5

Legal principles established

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  • A preliminary objection is not a proper vehicle where evidence would need to be called and interrogated to establish the facts relied upon, per the Mukisa Biscuits principle.
  • For res judicata to be invoked the elements of former final judgment on the merits by a court of competent jurisdiction, and identical parties, subject matter and cause of action, must be demonstrated.

Court orders

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  1. 1.The ruling of the High Court delivered on 17th February 2023 upholding the respondents' preliminary objections is hereby set aside
  2. 2.An order dismissing the preliminary objections is substituted in place of the ELC ruling
  3. 3.ELC No. E47 of 2022 is remitted back to the ELC for hearing and determination on merits before a Judge other than M. A. Odeny J.
  4. 4.The appellant shall have the costs of the appeal

The bench

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

SK
majority

Wrote the judgment

AM
majority
PN
majority
On appeal from
Environment and Land Court
ELC No. E047 of 2022
Jurisdiction invoked
First appellate appeal from the Environment and Land Court (per Court of Appeal jurisdiction over appeals from ELC under Article 164(1A) of the Constitution)

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.

The ruling of the High Court delivered on 17th February 2023 upholding the respondents' preliminary objections is hereby set aside. We substitute there for an order dismissing the preliminary objections.
p. 5Final orders - setting aside ELC ruling and substituting dismissal of preliminary objections
ELC No. E47 of 2022 is remitted back to the ELC for hearing and determination on merits before a Judge other than M. A. Odeny J.
p. 5Remittal for hearing before a different judge
evidence would have been required to link the properties, the subject of those actions, with the property claimed by the appellant in ELC No. E47 of 2022
p. 4Preliminary objection threshold where evidence is required
For res judicata to be invoked in a civil matter the following elements must be demonstrated
p. 4Elements of res judicata per John Florence Maritime Services

Issues in the judgment

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material

The names of the parties in the appeal are not stated anywhere in the judgment text; only their roles in prior suits can be inferred, and the case title in this brief is a placeholder.

minor

The judgment refers to the decision below as delivered by the Environment and Land Court but the Court of Appeal's disposition calls it 'the ruling of the High Court'.

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, "A.A Bayusuf & Sons Limited v Bahola & another (Civil Appeal E019 of 2023) [2026] KECA 622 (KLR)", Case Analysis (2026). Court of Appeal Appeal against ELC No. E047 of 2022 ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/622/eng@2026-03-25

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