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ELCOtherNot stated in the judgment (E&L Suit, Chuka)· [2025] KEELC 3944 (KLR)

Ciamwonge (Suing as the Legal Representative of the Estate of Mugendi Runguma – Deceased) v Laini & 7 others (Environment and Land Case E008 of 2024) [2025] KEELC 3944 (KLR)

Environment and Land Court
24 April 2025
1,563 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Chuka struck out a preliminary objection because res judicata must be raised through a formal application with supporting evidence, not a bare objection.

What this practically means

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Executive summary

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The plaintiff sued on behalf of the estate of the late Mugendi Runguma, seeking a declaration that entries in the land register relating to parcel Ndagani/Karingani/140 from 7/12/1999 are void, rectification of the register, eviction of the defendants, and a permanent injunction, alleging that the defendants used fraudulent succession documents to procure conveyance and subdivision of the estate land. The 6th defendant filed a notice of preliminary objection dated 21/1/2025 seeking striking out of the suit on grounds of res judicata under Section 7 of the Civil Procedure Act and abuse of process, relying on Chuka High Court Miscellaneous Succession Cause No E007 of 2023, which Gitari J dismissed by ruling dated 25/1/2024. The plaintiff opposed, contending the objection was defective and that the prior matter was a miscellaneous application not determined on merits. Applying the Mukisa Biscuits threshold as reaffirmed in Hassan Ali Joho, the court held that res judicata requires proof of a prior suit and determination through pleadings and determinations properly before the court, exhibited to a formal affidavit-supported application. The objector had attached such documents only to written submissions, which could not be relied upon as evidence. The preliminary objection was therefore struck out for failing the threshold, with liberty granted to raise res judicata by formal notice of motion. The court made no merits finding on res judicata and awarded costs of the objection to the plaintiff under Section 27 of the Civil Procedure Act.

Key legal issues

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01

Whether the notice of preliminary objection met the threshold of a preliminary objection

Holding

It did not; because determining res judicata required ascertaining facts from prior pleadings and determinations not properly before the court, the objection raised matters requiring evidence and was struck out.

Reasoning

Applying Mukisa Biscuits and Hassan Ali Joho, a preliminary objection must raise a pure point of law on the assumption that the facts pleaded by the other side are correct. Res judicata requires proof of a prior suit and determination, ordinarily through pleadings and determinations exhibited to an affidavit. The objector attached such documents only to written submissions, which cannot be relied upon as evidence, so the objection failed the threshold.

p. 4
02

Whether the suit is res judicata

Holding

The court declined to make any merits pronouncement, leaving the objector free to raise res judicata by formal notice of motion.

Reasoning

Having struck out the preliminary objection as the wrong platform for the res judicata claim, the court held that the issue requires a formal notice of motion supported by an affidavit exhibiting the prior pleadings, issues and determinations. The evidential materials had been attached only to written submissions and could not be relied upon, so no determination on the merits of res judicata was made.

p. 4

Legal principles established

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  • A party alleging res judicata who has not placed the prior pleadings and determinations before the court as part of its evidence or pleadings must bring a formal application supported by an affidavit exhibiting the relevant documents.

Court orders

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  1. 1.The notice of preliminary objection dated 21/1/2025 is struck out
  2. 2.The 6th defendant shall bear costs of the preliminary objection
  3. 3.The objector is at liberty to ventilate the issue of res judicata by way of a formal notice of motion

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure ActSection 27

Cases cited (2)

  • Mukisa Biscuits Manufacturing Co Ltd v West End Distributors Ltd
    (1969) EA 696
  • Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others
    SCK Petition No 10 of 2013
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes

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, "Ciamwonge (Suing as the Legal Representative of the Estate of Mugendi Runguma – Deceased) v Laini & 7 others (Environment and Land Case E008 of 2024) [2025] KEELC 3944 (KLR)", Case Analysis (2025). Not stated in the judgment (E&L Suit, Chuka). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3944/eng@2025-04-24

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