Cheruiyot & 447 others v Angata Bargoi Farmers Co-operative Society & 2 others (Enviromental and Land Originating Summons E017 of 2024) [2025] KEELC 883 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection met the Mukisa Biscuit threshold
It did not; it required ascertainment of facts and evidence regarding the alleged former suit
Relying on Mukisa Biscuit Manufacturers and Omondi v National Bank of Kenya, the court held a preliminary objection must be a pure point of law assumed on pleaded facts without fact-finding. The claim of res judicata depended on proving the existence, parties and issues of a former suit, which required affidavit or viva voce evidence. The judgment relied on was irregularly annexed to submissions instead of an affidavit.
Whether res judicata could still be considered
Yes, as part of the response to the application dated 25.11.2024
The court declined to determine the merits of the res judicata plea on the preliminary objection, instead deferring it so that the facts and evidence lending credence to the plea could be ascertained within the pending application.
Legal principles established
#- A preliminary objection must be a pure point of law; if facts must be ascertained it cannot succeed
- A plea of res judicata based on the existence of a previous suit is a factual issue requiring evidence, not properly determined by preliminary objection as drawn
Court orders
#- 1.The preliminary objection dated 9.10.2024 is struck out with costs in the cause
- 2.The issue of res judicata raised in the Preliminary Objection shall be considered as part of the response to the application dated 25.11.2024
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under the ELC Act; suit pending before the court, P/O filed therein
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cheruiyot & 447 others v Angata Bargoi Farmers Co-operative Society & 2 others (Enviromental and Land Originating Summons E017 of 2024) [2025] KEELC 883 (KLR)", Case Analysis (2025). Narok ELC No. 1270 of 2017 (formerly Kisii ELC No. 601 of 2016) - ruling on Notice of Preliminary Objection dated 17/01/2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/883/eng@2025-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.