Kassim v Kiende & 2 others (Environment & Land Case E004 of 2022) [2025] KEELC 803 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled a struck-out case doesn't block a fresh land suit, and unregistered plots stay under its jurisdiction.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is res judicata given prior Isiolo CMC ELC No. 100 of 2018
The plea fails because the previous suit was never heard and determined on merits; it was struck out for want of jurisdiction and pleadings returned to the plaintiff.
Relying on Kenya Commercial Bank Ltd v Muiri Coffee Estate Ltd and John Florence Maritime Services, the court restated the conjunctive ingredients of res judicata, including a former final judgment on merits by a competent court. The previous Isiolo suit ended with a ruling of 12th March 2019 upholding a jurisdictional objection; the pleadings were returned to the plaintiff without any determination on merits. With no effective determination, the plea of res judicata is premature, misconceived and untenable.
Whether sections 18(2) and 19 of the Land Registration Act, 2012 oust the court's jurisdiction over the boundary dispute
They do not; the Act applies only to formally registered parcels, and the suit plots are unregistered. The ELC has jurisdiction over boundary disputes under Section 13(2) of the ELC Act.
Counsel for the 2nd and 3rd Defendants confirmed the suit properties have not been brought under the Land Registration Act regime. Further, Section 13(2) of the Environment and Land Court Act confers jurisdiction over disputes relating to boundaries. The court, citing the Supreme Court's doctrine-of-exhaustion analysis in Nicholus v Attorney General, held that where other claims cannot be determined by the Land Registrar, the court must entertain the dispute; injunction and trespass damages fall outside a Land Registrar's purview.
Legal principles established
#- Res judicata applies only where the previous suit was heard and determined on merits by a court of competent jurisdiction; the ingredients of Section 7 of the Civil Procedure Act must be satisfied conjunctively.
- The Land Registration Act (sections 18 and 19) applies only to formally registered parcels; an unregistered plot dispute is not caught by section 18(2).
- The Environment and Land Court retains jurisdiction over boundary disputes; a boundary claim does not automatically oust its jurisdiction where other reliefs fall outside a Land Registrar's powers.
Court orders
#- 1.The preliminary objection dated 29th February 2024 is dismissed
- 2.Costs of the preliminary objection awarded to the Plaintiff and to the 2nd and 3rd Defendants respectively
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution; Section 13(2) of the Environment and Land Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kassim v Kiende & 2 others (Environment & Land Case E004 of 2022) [2025] KEELC 803 (KLR)", Case Analysis (2025). Not stated in judgment (Isiolo ELC suit; relates to plot no. 105 Kiwanjani, Isiolo). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/803/eng@2025-02-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.