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ELCDismissedNot stated in judgment (Isiolo ELC suit; relates to plot no. 105 Kiwanjani, Isiolo)· [2025] KEELC 803 (KLR)

Kassim v Kiende & 2 others (Environment & Land Case E004 of 2022) [2025] KEELC 803 (KLR)

Environment and Land Court
25 February 2025
3,888 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Plaintiff sued for a declaration of ownership of plot no. 105 Kiwanjani, Isiolo, a permanent injunction against the 1st Defendant, eviction, general damages for trespass, and costs. The 1st Defendant filed a preliminary objection dated 29th February 2024 contending that the suit was barred by Section 7 of the Civil Procedure Act (res judicata), citing the earlier Isiolo CMC ELC No. 100 of 2018 between the same parties, and that the court lacked jurisdiction because the dispute concerned boundaries between plots 105 and 106, which ought to have gone to the Land Registrar under sections 18(2) and 19 of the Land Registration Act, 2012. The Plaintiff responded that the previous suit was struck out on 12th March 2019 without a hearing on merits, and that the suit plots are not registered under the Land Registration Act. The court, applying the Supreme Court's expositions in Kenya Commercial Bank Ltd v Muiri Coffee Estate Ltd and John Florence Maritime Services, held that the res judicata ingredients must be satisfied conjunctively, including a final determination on merits; since the previous suit was never determined on merits, the plea was premature and untenable. On jurisdiction, the court held that the Land Registration Act applies only to registered parcels, and that Section 13(2) of the Environment and Land Court Act confers jurisdiction over boundary disputes, which cannot be ousted merely because a boundary claim is included; the consequential reliefs sought fall outside a Land Registrar's powers. The preliminary objection was dismissed with costs to the Plaintiff and the 2nd and 3rd Defendants.

Key legal issues

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01

Whether the suit is res judicata given prior Isiolo CMC ELC No. 100 of 2018

Holding

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.

Reasoning

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.

p. 5
02

Whether sections 18(2) and 19 of the Land Registration Act, 2012 oust the court's jurisdiction over the boundary dispute

Holding

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.

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.The preliminary objection dated 29th February 2024 is dismissed
  2. 2.Costs of the preliminary objection awarded to the Plaintiff and to the 2nd and 3rd Defendants respectively

Authorities

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Legislation

  • Civil Procedure Act, Cap 21Section 7
  • Land Registration Act, 2012Sections 18(2) and 19
  • Environment and Land Court Act, 2011Section 13(2)
  • Constitution of Kenya, 2010Article 162(2)(b); Article 159
  • Fair Administrative Action ActSections 9(2) and 9(4)

Cases cited (8)

  • Abok James Odera vs John Patrick Machira
    Civil Application No. 49 of 2001 [unreported]
  • Independent Electoral and Boundaries Commission vs Maina Kiai & 5 others
    (2017) eKLR
  • Kenya Commercial Bank Ltd vs Muiri Coffee Estate Ltd
    (2016) eKLR
  • John Florence Maritime Services Ltd vs The Cabinet Secretary Transport, Infrastructure, Roads & Public Works
    [2021] eKLR
  • Nicholus v Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties)
    (Petition E007 of 2023) [2023] KESC 113 (KLR) (28 December 2023)
  • Kenya Revenue Authority & 2 others vs Darasa Investments Ltd
    [2018] eKLR
  • Uhuru Highway Developers Limited v Central Bank of Kenya & others
    [1999] eKLR
  • Nicholas Njeru v Attorney General & 8 others
    Civil Appeal 110 of 2011 (2013) eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution; Section 13(2) of the Environment and Land Court Act, 2011

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, "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.