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ELCOtherOriginating Summons dated 14th February 2024 (Naivasha ELC)· [2025] KEELC 3843 (KLR)

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)

Environment and Land Court
15 May 2025
3,140 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Plaintiffs filed an Originating Summons dated 14th February 2024 seeking to be declared proprietors of land parcel L.R No. 20XX9/1, IR 67XX8 (3,245 hectares, S.W of Gilgil Township) by adverse possession, in a representative capacity for 1,495 members of Oljorai Squatters Phase (III). The 2nd Defendant filed a Notice of Preliminary Objection dated 2nd May 2024 arguing that the suit was res judicata Nakuru HCC No. 87 of 2007 and Nakuru ELC No. 89 of 2013 (whose subject matter is on appeal in Nakuru Civil Appeal No. 29 of 2020), that the court was functus officio and had lost jurisdiction, and that the representative suit breached Order 1 Rule 8 for want of leave. The Plaintiffs opposed, contending the objection rested on contested facts and failed the Mukisa Biscuit threshold. The objection was disposed of by written submissions. The court, Oundo J., framed the single issue of whether the preliminary objection was sustainable. Applying Mukisa Biscuit and Newbold P.'s test, the court held that a preliminary objection must be a pure point of law requiring no ascertainment of facts. Since the objections on res judicata, sub-judice and functus officio required scrutiny of the pleadings, decisions and parties in the previous suits - none of which were annexed - res judicata could not be determined on a notice of preliminary objection but only by notice of motion with the previous pleadings attached. The objection was therefore unsustainable and was struck out with costs; the Originating Summons remains for substantive determination.

Key legal issues

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01

Whether the preliminary objection met the Mukisa Biscuit threshold of a pure point of law

Holding

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

Reasoning

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.

p. 6
02

Whether res judicata was proved

Holding

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

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 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

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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, "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.