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ELCDismissedAmended Memorandum of Appeal dated 24/10/2023 (from Ukwala SPM ruling of 8th June 2023)· [2025] KEELC 4124 (KLR)

Kademba v Onyango & 2 others (Environment and Land Appeal E01 of 2023) [2025] KEELC 4124 (KLR)

Environment and Land Court
22 May 2025
3,043 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Siaya against the ruling of the Senior Principal Magistrate at Ukwala (Hon. L.N. Saarapai) delivered on 8th June 2023, dismissing a preliminary objection raised by the 1st defendant in land proceedings concerning parcel East Ugenya/Jera/226. The objection, condensed by the trial court into three grounds, contended that the plaintiffs lacked locus standi, the suit was res judicata, and it was misconceived and an abuse of process. A.E. Dena J identified four clusters of issues. On the condensation of grounds, the court held grounds of abuse of process and want of cause of action cannot be raised by preliminary objection (citing Oraro v Mbaja) and did not fault the trial magistrate. On locus standi, the court found the plaintiffs claim under the late James Otieno Nyapur, for whose estate they hold a grant ad litem, and that the deceased's absence from the ownership documents is a contested matter for trial; the earlier strike-out in Kisumu ELC 225 of 2013 (Kaniaru J) concerned a suit under Njega Nyapur. On res judicata, applying the conjunctive elements in IEBC v Maina Kiai and Section 7 of the Civil Procedure Act, the court held that prior suits struck out or dismissed on technicality - including Ukwala ELC 42 of 2020 and the adopted Tribunal decision - were not determined on merit and cannot bar the suit. The appeal was dismissed, each party to bear their own costs, and the lower court file was returned to Ukwala for hearing and determination on merits.

Key legal issues

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01

Locus standi of plaintiffs claiming under a deceased person's estate

Holding

The plaintiffs, claiming under James Otieno Nyapur and holding a grant ad litem for his estate dated 18.08.2022, had locus standi; the fact that the deceased does not feature in the ownership documents is a contested matter for trial

Reasoning

The plaint pleads that Oduor Odemba alias Michael Oduor Kademba was inserted during registration to hold the parcel in trust for the family of James Otieno Nyapur, who died before registration. The plaintiffs claim under that deceased person and obtained a grant ad litem conferring legal capacity. Whether the deceased appears on the green card is a contested ownership issue that must await the hearing on merit. The earlier striking out in Kisumu ELC 225 of 2013 concerned a suit under Njega Nyapur, not the present claim.

p. 4
02

Res judicata

Holding

The suit is not res judicata; the prior suits were struck out or dismissed without determination on merit (e.g. the Tribunal decision was not a competent adjudication of ownership; Ukwala ELC 42 of 2020 was struck out), so the elements of Section 7 of the Civil Procedure Act, which must be satisfied conjunctively, are not met

Reasoning

Relying on IEBC v Maina Kiai, the five res judicata elements are conjunctive. The Kisumu High Court (Kaniaru J) had found the Lands Dispute Tribunal incompetent to determine ownership. Suits dismissed or struck out on technicality lack the finality on the merits that Section 7 requires. The proceedings in Ukwala ELC 42 of 2020 were not attached, but it was struck out, hence no final determination. The court agreed with the trial magistrate's adoption of the High Court's reasoning.

p. 6
03

Proper scope of a preliminary objection

Holding

Grounds of abuse of process, misconception and want of cause of action cannot properly be raised in a preliminary objection; they belong in an application for striking out pleadings

Reasoning

Citing Oraro v Mbaja, a preliminary objection must be a pure point of law not dependent on facts. The court would not fault the trial magistrate for condensing the eight grounds into three, since grounds 5, 6 and 8 were matters for a striking-out application rather than a preliminary objection.

p. 3

Legal principles established

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  • A preliminary objection raises a pure point of law and does not delve into facts; grounds such as abuse of process or lack of cause of action belong in an application to strike out pleadings
  • A suit dismissed or struck out on technicality, not on merit, cannot be res judicata because it has not been heard to finality
  • A party claiming through a deceased person's estate can only sue if holding a grant conferring legal capacity
  • On a first appeal the appellate court's role is to re-evaluate, re-assess and reanalyse the evidence on the record

Court orders

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  1. 1.The appeal lacks merit and is dismissed
  2. 2.Each party to bear their own costs of the appeal
  3. 3.The lower court file shall be returned to Ukwala Law Courts for hearing and determination on merits
On appeal from
Senior Principal Magistrate's Court at Ukwala
null (ruling dated 8th June 2023)
Jurisdiction invoked
First appellate jurisdiction over the Senior Principal Magistrate's Court at Ukwala (ruling on Notice of Preliminary Objection dated 26/06/2022)

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, "Kademba v Onyango & 2 others (Environment and Land Appeal E01 of 2023) [2025] KEELC 4124 (KLR)", Case Analysis (2025). Amended Memorandum of Appeal dated 24/10/2023 (from Ukwala SPM ruling of 8th June 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4124/eng@2025-05-22

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