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ELCDismissedNot stated in judgment (Murang'a Constitutional Petition)· [2025] KEELC 3996 (KLR)

Muthoni & 130 others v Murang’a County Government & 3 others (Environment & Land Petition E005 of 2024) [2025] KEELC 3996 (KLR)

High Court of Kenya
15 May 2025
1,005 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court ruled you can't get a case struck out as a repeat without filing actual evidence proving the earlier case covered the same issues.

What this practically means

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Executive summary

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This ruling of the High Court at Murang'a (M. N. Gicheru, Judge) decides a preliminary objection dated 16 December 2024 in an ongoing constitutional petition. The 1st Respondent objected that the petition was res judicata, having been conclusively heard and determined in Murang'a High Court Constitutional Petition No. E003 of 2022 (Cyrus Njoroge Muthoni and 130 Others vs. National Land Commission and 3 Others), and that the court therefore lacked jurisdiction; it sought striking out of the petition with costs. The petitioner opposed, arguing that res judicata is not a pure point of law, that the orders sought differ from the earlier suit, and that Delmonte has since surrendered the land, changing the subject matter. The court dismissed the objection on three grounds. First, the objection was not anchored on pleadings: the 1st Respondent filed no replying affidavit exhibiting the pleadings in the earlier petition, and the court could not rely on submissions from the bar alone; tangible evidence was required. Second, even on the submissions, the two petitions differ: the earlier petition sought to compel Delmonte to surrender land, whereas this petition concerns the mode of distribution of already-surrendered land and its beneficiaries, so there is no similarity. Third, striking out pleadings is a draconian measure derogating from the fair-hearing guarantee in Article 50(1) of the Constitution; a court should rather sustain a suit, and no clear reasons for striking out were shown. The preliminary objection was dismissed with costs to the petitioner.

Key legal issues

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01

Whether res judicata is a pure point of law suitable for a preliminary objection without evidence

Holding

No - the party raising it must file the pleadings of the earlier suit to establish similarity; the court cannot rely on submissions from the bar

Reasoning

The court found the objection was not anchored on any pleadings: no replying affidavit exhibited the pleadings in Petition No. E003 of 2022. It was the 1st Respondent's burden to file those pleadings and show how they mirror the present petition. Asking the court to peruse the record of another suit and compare it with the pleadings here converts the preliminary objection into a fact-finding exercise, which is impermissible.

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02

Whether the two petitions raise the same issues

Holding

They do not - the earlier petition concerned compelling Delmonte to surrender land, whereas this one concerns the mode of distribution and beneficiaries of already-surrendered land

Reasoning

Even on the submissions from the bar, the court observed a material difference in the subject matter: in the earlier petition the petitioners were fighting Delmonte to surrender land, while in the present petition the land has already been surrendered and the dispute is over its distribution and beneficiaries. The two scenarios differ, so there is no similarity between the petitions and res judicata cannot arise.

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03

Whether the petition should be struck out

Holding

No - striking out is a draconian step derogating from the fair-hearing guarantee and was unjustified here

Reasoning

The court held that striking out pleadings is too severe because the underlying dispute would remain unresolved, contrary to Article 50(1) of the Constitution. A court should rather sustain a suit than strike it out, and very good and clear reasons must be shown by the party seeking striking out. No such clear reasons were apparent in this case.

p. 2

Legal principles established

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  • A party raising a preliminary objection based on res judicata must file tangible evidence (such as the pleadings in the earlier suit), not rely on submissions from the bar
  • Striking out pleadings is a draconian measure that derogates from the constitutional right to a fair hearing; courts should prefer sustaining suits

Court orders

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  1. 1.The preliminary objection dated 16-12-2024 is dismissed
  2. 2.Costs of the preliminary objection to the petitioner
Jurisdiction invoked
Article 50(1) of the Constitution (fair hearing) invoked; original constitutional petition jurisdiction

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, "Muthoni & 130 others v Murang’a County Government & 3 others (Environment & Land Petition E005 of 2024) [2025] KEELC 3996 (KLR)", Case Analysis (2025). Not stated in judgment (Murang'a Constitutional Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3996/eng@2025-05-15

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