Kademba v Onyango & 2 others (Environment and Land Appeal E01 of 2023) [2025] KEELC 4124 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Locus standi of plaintiffs claiming under a deceased person's estate
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
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.
Res judicata
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
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.
Proper scope of a preliminary objection
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
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.
Legal principles established
#- 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
#- 1.The appeal lacks merit and is dismissed
- 2.Each party to bear their own costs of the appeal
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.