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ELCStruck OutNot stated in the judgment as provided (ELC suit, Malindi)

Pasi and Ponda (Suing and legal representatives of the Estate of Charles Pasi Ponda) & 3 others v Kambi & 11 others (Environment & Land Case E097 of 2024) [2025] KEELC 1455 (KLR)

Environment and Land Court
20 March 2025
3,388 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a land suit as an abuse of process because it re-litigated issues already decided, ending years of litigation.

What this practically means

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Executive summary

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This was a ruling on a preliminary objection and a notice of motion in a land dispute before the Environment and Land Court at Malindi. The plaintiffs, armed with letters of administration ad litem for the estate of Charles Pasi Ponda, sued over Kilifi/Roka/930, 932, 943 and 944, seeking among other things an order of status quo pending trial, and a declaration that Tribunal orders dividing the land were null and void for being stale and unenforced beyond the Limitation of Actions Act period. The defendants raised a preliminary objection on two grounds: lack of authority by the 1st plaintiffs to sue for the estate, and res judicata. The court applied the Mukisa Biscuit test for preliminary objections. On capacity, it held the grant of letters of administration ad litem taken out before filing conferred locus standi, rejecting that limb. On res judicata, however, it found the suit congruent with Malindi ELC 54 of 2019, where Odeny J. had dismissed both the plaintiffs' suit and the defendants' counterclaim because the Bahari Land Disputes Tribunal award, upheld by the Provincial Land Disputes Appeal Committee and adopted as judgment, remained subsisting and had not been set aside. The plaintiffs' appeal against that decision was abandoned, and the Court of Appeal declined to extend time. The court held that the fresh suit was a series of cases pursued to evade enforcement of subsisting orders, amounting to an abuse of process caught by res judicata. Upholding the preliminary objection, the court struck out the pending application and the entire suit with costs, without determining the status quo application.

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 objection is sustainable on the ground that the 1st plaintiffs lack authority (locus standi) to file suit on behalf of the Estate of Charles Pasi Ponda
  2. 2.Whether the suit is res judicata in light of Malindi ELC 54 of 2019 and the Tribunal/Committee orders
  3. 3.Whether status quo orders pending hearing of the main suit should be granted
  4. 4.Who should bear the costs

Key legal issues

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01

Capacity of the 1st plaintiffs to sue on behalf of the estate

Holding

The preliminary objection on capacity failed because the plaintiffs held a grant of letters of administration ad litem effective from 6th August 2024, taken out before filing suit

Reasoning

Relying on the definition of locus standi in Black's Law Dictionary and Alfred Njau v City Council of Nairobi, the court found that the grant of letters of administration ad litem under section 80(2) of the Law of Succession Act gave the 1st plaintiffs authority to institute the suit. That limb of the preliminary objection therefore could not be sustained.

p. 4
02

Whether the suit is res judicata

Holding

The suit is res judicata: it is congruent with Malindi ELC 54 of 2019, in which Odeny J. dismissed the suit because subsisting Tribunal orders adopted as judgment had not been set aside, and the plaintiffs abandoned their appeal against that decision

Reasoning

The court noted that the same parties and subject matter featured in the former suit and prior Tribunal proceedings. Odeny J. dismissed the earlier suit because the Tribunal award, upheld by the Provincial Appeals Committee and adopted as judgment, remained valid until set aside. The plaintiffs' appeal against that decision was not prosecuted, and the Court of Appeal declined to extend time. Pursuing a fresh suit to declare the orders stale is an abuse of process and caught by res judicata.

p. 6
03

Whether status quo orders should issue pending trial

Holding

Not considered; with the preliminary objection upheld, the pending application and the entire suit were struck out

Reasoning

Once the preliminary objection on res judicata succeeded, the court held there was no need to determine the application for status quo orders. The application was struck out together with the entire suit, with costs to the defendants.

p. 7

Legal principles established

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  • A suit filed to evade subsisting Tribunal orders adopted by a court, involving the same parties and subject matter, is barred by res judicata and constitutes an abuse of court process
  • A person who has taken out letters of administration ad litem before filing suit has the capacity to sue on behalf of an estate

Court orders

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  1. 1.The preliminary objection dated 19th September 2024 is upheld
  2. 2.The pending application and the entire suit are struck out with costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land (Kilifi/Roka/930, 932, 943 and 944)

Relief refused

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Order of status quo pending hearing of the main suit over Kilifi/Roka/930, 932, 943 and 944

The suit was struck out on the preliminary objection; the court declined to consider the pending application

p. 7

Declaration that the Tribunal orders are null and void for being stale and time-barred under the Limitation of Actions Act

The claim is res judicata; the same issues were determined in Malindi ELC 54 of 2019 and the plaintiff's appeal therefrom was abandoned

p. 6

Costs

The pending application and the entire suit are struck out with costs (costs awarded against the plaintiffs to the defendants).

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 upshot is that the Preliminary Objection dated 19th September 2024 is hereby upheld; I need not consider the pending application. Therefore, the pending application and the entire suit are hereby struck out with costs.
p. 7Final orders - suit struck out on res judicata
They are now pursuing a series of cases to evade enforcement of those orders, as highlighted by the defendants. This constitutes an abuse of the court process. This matter and Malindi ELC NO. 54 of 2019 are congruent; therefore, the doctrine of res judicata crops in.
p. 6Res judicata and abuse of process
Having established that the Letters of Administration ad litem were taken out before filing this suit, I agree that the 1st plaintifis herein are correctly before the court.
p. 4Locus standi - administration ad litem
Jurisdiction is everything. Without it, a court has no power to make one more step.
p. 3Jurisdiction (quoting Owners of the Motor Vessel 'Lillian S')
Parties have had a chance to ventilate all issues they had concerning what has been raised here. Enough judicial time has been accorded to them. Litigation must come to an end.
p. 7Finality of litigation

Issues in the judgment

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minor

The judgment states the preliminary objection was dated 19th September 2024, the same date as the plaintiffs' notice of motion, whereas paragraph 1 records the preliminary objection as dated 25th November 2024

minor

Inconsistent paragraph numbering in the judgment (e.g. multiple paragraphs numbered 6, 10, 41-43)

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, "Pasi and Ponda (Suing and legal representatives of the Estate of Charles Pasi Ponda) & 3 others v Kambi & 11 others (Environment & Land Case E097 of 2024) [2025] KEELC 1455 (KLR)", Case Analysis (2025). Not stated in the judgment as provided (ELC suit, Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1455/eng@2025-03-20

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