BJKL v MIL & 4 others (Environment & Land Case E031 of 2024) (Environment and Land) [2025] KEELC 171 (KLR)
The bottom line
#The Environment and Land Court in Naivasha dismissed a homeowner's suit because it repeated a claim she had already lost, and she was ordered to pay the defendants' costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the instant suit is res judicata the ruling in Nakuru ELC Case No. E045 of 2023
The suit is res judicata the earlier ruling and is an abuse of court process; the Preliminary Objections succeed and the suit and application are dismissed with costs
The court compared the pleadings and the prayer in the former suit with the present suit and found the matter in issue identical, the parties similar, the title identical and concurrence of jurisdiction. The earlier ruling was of a final nature, having found the court had no jurisdiction over matters of mortgages and charges, which fall within the civil jurisdiction of the High Court. Adding new parties (the purchaser, Registrar of Titles and Attorney General) could not defeat res judicata, and a judgment of a competent court could only be varied, vacated, set aside or reviewed by the same or an appellate court.
Whether the Preliminary Objections were properly founded on a point of law under the Mukisa Biscuit test
Preliminary Objections must be raised on a point of law derived from statute, not on facts yet to be ascertained; an objection on facts is a breach of procedure and an abuse of court process
Guided by Mukisa Biscuit Manufacturing Co Ltd v West End Distributors, the court held that a Preliminary Objection proceeds on the assumption that all facts pleaded by the adverse party are correct and must not raise substantive issues requiring evidence. A point of law is derived from statute; a party cannot question the truthfulness of a fact by way of Preliminary Objection, as such an objection amounts to abuse of court process.
Legal principles established
#- A Preliminary Objection must be raised on a point of law, on the assumption that all facts pleaded by the adverse party are correct, and not on facts yet to be ascertained
- For res judicata to apply there must be a former final judgment on merit by a competent court between identical parties, subject matter and cause of action
- Parties cannot evade the doctrine of res judicata by adding other parties or causes of action in a subsequent suit
- A judgment of a court of competent jurisdiction can only be varied, vacated, set aside or reviewed by the same court or an appellate court
Court orders
#- 1.The Preliminary Objections dated 28th August 2024 and 13th September 2024 succeeded
- 2.The Plaintiff/Applicant's Notice of Motion application dated 30th July, 2024 is dismissed
- 3.The Plaintiff's suit of even date is dismissed as res judicata Nakuru ELC Case No. E045 of 2023 and an abuse of court process
- 4.Costs awarded to the Defendants
- Jurisdiction invoked
- Article 162(2) of the Constitution and Section 13 of the Environment and Land Court Act (jurisdiction of the ELC); Section 7 of the Civil Procedure Act Cap 21 (res judicata)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "BJKL v MIL & 4 others (Environment & Land Case E031 of 2024) (Environment and Land) [2025] KEELC 171 (KLR)", Case Analysis (2025). ELC Case at Naivasha (Plaint dated 30th July, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/171/eng@2025-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.