Omondi & 4 others (Suing on their Behalf and on Behalf of 1,495 Members of Oljorai Squatters Phase (III)) v Lands Limited & 3 others (Enviromental and Land Originating Summons E002 of 2024) (Environment and Land) [2025] KEELC 3843 (KLR)
The bottom line
#A Kenyan court struck down a company's attempt to dismiss squatters' land claim, confirming that arguments about past cases need evidence, not just legal points.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection met the Mukisa Biscuit threshold of a pure point of law
No - the objection required ascertainment of facts (existence and content of the previous suits, identity of parties) and thus could not be raised as a preliminary objection
The court applied the Mukisa Biscuit and Newbold P. test that a preliminary objection must raise a pure point of law on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained. Because the objection on res judicata, sub-judice and functus officio required scrutiny of pleadings and decisions in Nakuru HCC No. 87 of 2007 and Nakuru ELC No. 89 of 2013, none of which were annexed, it was improper and unsustainable.
Whether res judicata was proved
Res judicata was not established because the 2nd Defendant did not annex the pleadings, decisions or judgments of the previous suits to demonstrate identity of parties, issues and subject matter
Relying on John Florence Maritime Services and persuasive ELC decisions, the court held that the party invoking res judicata must place before the court the pleadings and judgments of the earlier suits so the court can determine the issues decided, whether they are the same, and whether the parties are the same or litigating under the same title. The 2nd Defendant raised the point by notice of preliminary objection with no such documents, so the ground could not succeed.
Legal principles established
#- A preliminary objection consists of a pure point of law which has been pleaded or arises by clear implication from the pleadings and which, if argued as a preliminary point, may dispose of the suit
- A ground of res judicata cannot properly be raised by notice of preliminary objection; it should be raised by notice of motion with the previous pleadings and decisions annexed
Court orders
#- 1.The Preliminary Objection dated 2nd May 2024 is struck out with costs
- Jurisdiction invoked
- Article 162(2)(b) Constitution / Environment and Land Court Act (court seized of originating summons for adverse possession)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omondi & 4 others (Suing on their Behalf and on Behalf of 1,495 Members of Oljorai Squatters Phase (III)) v Lands Limited & 3 others (Enviromental and Land Originating Summons E002 of 2024) (Environment and Land) [2025] KEELC 3843 (KLR)", Case Analysis (2025). Originating Summons dated 14th February 2024 (Naivasha ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3843/eng@2025-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.