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ELCStruck OutNarok CMELC No. 120 of 2018 referred; suit dated 14th October 2024· [2025] KEELC 2882 (KLR)

Kitashori & 2 others (Suing as Personal Representatives of the Estate of the Late Sururu Ole Turere) v Kilesi & 4 others (Environment & Land Case E032 of 2024) [2025] KEELC 2882 (KLR)

Environment and Land Court
27 March 2025
2,422 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan land court struck out a lawsuit because it re-litigated a dispute already decided in an earlier case, ordering the plaintiffs to pay the defendants' costs.

What this practically means

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Executive summary

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The Plaintiffs filed suit on 14th October 2024 seeking a declaration that the subdivision of land parcel Cis-Mara/Olopito/493 was illegal, irregular, un-procedural and fraudulent, cancellation of titles emanating from that subdivision, and other reliefs. The 1st to 4th Defendants filed a Notice of Preliminary Objection dated 21st November 2024, contending that the suit was res judicata given the judgment delivered on 6th August 2024 in Narok CMCELC No. 120 of 2018 between the same parties over the same parcel, in which the trial court declared the transfer of the land fraudulent and reverted it to the estate of Sururu Turere (deceased). The Plaintiffs opposed, arguing the parties and issues differed and that the objection did not meet the Mukisa Biscuit threshold for a pure point of law. The court framed two issues: whether the objection raised pure points of law, and whether the suit was res judicata. Applying Section 7 of the Civil Procedure Act and Supreme Court authority, the court held the objection was proper since the Plaintiffs themselves pleaded the former suit, and that the issues were directly and substantially the same, the parties the same save for added Defendants, and the former suit was determined by a competent court. The court held that the Plaintiffs should have executed the decree rather than file a fresh suit, and that adding new parties cannot circumvent res judicata. The objection was allowed entirely, the suit struck out with costs to the Defendants.

Key legal issues

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01

Whether the preliminary objection raised a pure point of law

Holding

It met the Mukisa Biscuit threshold because the existence of the former suit was pleaded by the Plaintiffs themselves

Reasoning

Although determining res judicata ordinarily involves facts, here the Plaintiffs pleaded the existence and outcome of Narok CMELC No. 120 of 2018, so the objection stemmed from the pleadings and could be determined without ascertaining disputed facts.

02

Whether the suit is res judicata

Holding

Yes; the same parties litigating under the same title over the same parcel were finally determined by a competent court

Reasoning

The judgment of 6th August 2024 in CMELC 120 of 2018 was by a competent court and conclusively determined ownership of Cis-Mara/Olopito/493. The Plaintiffs should have executed the decree rather than file a fresh suit; adding new Defendants does not defeat res judicata.

p. 5

Legal principles established

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  • Adding or subtracting litigants does not sanitize a suit from the doctrine of res judicata
  • A preliminary objection must raise a pure point of law on the assumption that the facts pleaded by the other side are correct
  • A party who has obtained a decree in their favour should enforce it rather than file a fresh suit over the same subject matter

Court orders

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  1. 1.The Preliminary Objection dated 21st November 2024 is allowed entirely
  2. 2.The suit is struck out entirely
  3. 3.Costs to the Defendants

Authorities

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Legislation

  • Civil Procedure ActSection 7

Cases cited (8)

  • Kenya Commercial Bank Ltd vs Muiri Cofiee Estate Ltd & another
    [2016] eKLR
  • IEBC vs Maina Kiai & 5 others
    [2017] eKLR
  • Caltex Oil (K) Ltd vs Mohamed Yusuf and others
  • Agnes Wachu Wamae & 97 others vs Barclays Bank of Kenya
  • Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors
    [1969] EA 696
  • Hassan Ali Joho & another vs Suleiman Said Shabal & others
    SCK Pet. No 120/3 [2014] eKLR
  • John Florence Maritime Services Limited & Another vs Cabinet Secretary for Transport and Infrastructure & 3 Others
    [2021] eKLR
  • Diocese of Eldoret Trustees (Registered) v Attorney General (on behalf of the Principal Secretary Treasury) & another
    [2020] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; preliminary objection under Section 7 of the Civil Procedure Act

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, "Kitashori & 2 others (Suing as Personal Representatives of the Estate of the Late Sururu Ole Turere) v Kilesi & 4 others (Environment & Land Case E032 of 2024) [2025] KEELC 2882 (KLR)", Case Analysis (2025). Narok CMELC No. 120 of 2018 referred; suit dated 14th October 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/2882/eng@2025-03-27

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