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ELCStruck OutNot stated in judgment (Originating Summons dated 22nd August 2003)· [2025] KEELC 4358 (KLR)

Chemitei & another v Chepkok & 2 others (Environment & Land Case 67 of 2019) [2025] KEELC 4358 (KLR)

Environment and Land Court (not expressly named; single-judge first-instance court at Nakuru)
11 June 2025
MOM. A. Odeny
1,845 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court struck out a 2003 land claim because the same land had already been distributed in a Nakuru succession case, and no appeal was ever filed.

What this practically means

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Executive summary

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This ruling determines the 3rd Defendant's preliminary objection dated 9th October 2024 in a suit by the Plaintiffs claiming ownership, mesne profits and eviction over land the 1st and 2nd Defendants subdivided, one parcel having been sold to the 3rd Defendant. The 3rd Defendant raised four grounds: the suit is incompetent and an abuse of process; it is res judicata and the court functus officio; the court lacks jurisdiction; and the Plaintiffs lack locus standi. The 3rd Defendant argued the dispute over the suit land had been conclusively determined in Nakuru High Court Succession Cause No. 362 of 1997 by a confirmed grant, and that a Limited Grant Ad Colligenda bona cannot sustain a suit on behalf of an estate. The Plaintiffs countered that they were challenging the confirmation of grant as fraudulently obtained, that ownership, mesne profits and eviction were never litigated, and invoked Article 159 urging substantive justice. The court applied the Joho definition of a preliminary objection and the Stephen Mwaura Njuguna authority on concurrent jurisdiction. It found the Plaintiffs admitted the succession cause was heard, determined and the grant confirmed in favour of the 1st and 2nd Defendants, with no objection, revocation application or appeal. The court held it has no jurisdiction to annul a grant confirmed by the High Court, and doing so would amount to sitting as an appellate court, rendering the suit an abuse of process. It further found the Originating Summons failed to state the Plaintiffs' representative capacity contrary to Order 4 rule 4, a defect not curable under Article 159 since no amendment was sought. The preliminary objection was upheld and the suit struck out with costs.

Key legal issues

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01

Jurisdiction and res judicata

Holding

The court has no jurisdiction to entertain a suit seeking to relitigate ownership of land distributed under a confirmed grant in a succession cause decided by a court of concurrent jurisdiction

Reasoning

The Plaintiffs annexed the grant and certificate of confirmation from Nakuru Succession Cause No. 362 of 1997 and admitted the estate was distributed and the grant confirmed in favour of the 1st and 2nd Defendants. There was no objection, revocation application or appeal. This court cannot annul or set aside a grant confirmed by the High Court; doing so would amount to sitting as an appellate court.

p. 3
02

Compliance with Order 4 rule 4 Civil Procedure Rules

Holding

The suit is incompetent because the Originating Summons does not state the capacity in which the Plaintiffs sue or how that capacity arises, and the defect is not a procedural technicality curable under Article 159

Reasoning

The Originating Summons dated 22nd August 2003 and supporting affidavit nowhere indicate the Plaintiffs' representative capacity, nor the capacities of the 1st and 2nd Defendants. The Plaintiffs blamed former counsel, but the court held that counsel should have sought amendment and cannot hide under Article 159(2) of the Constitution to salvage a 22-year-old case.

p. 4

Legal principles established

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  • A court of concurrent jurisdiction cannot set aside or revisit a matter already decided by a judge of the same court; only an appellate court may do so
  • A preliminary objection consists of a point of law which may dispose of the suit
  • Where a plaintiff sues in a representative capacity, the pleadings must state the capacity and how it arises under Order 4 rule 4

Court orders

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  1. 1.The 3rd Defendant's preliminary objection dated 9th October 2024 is upheld
  2. 2.The case is struck out with costs

Authorities

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Legislation

  • Constitution of KenyaArticle 159; Article 159(2)
  • Civil Procedure RulesOrder 4 rule 4

Cases cited (5)

  • Hassan Ali Joho & another -Vs- Suleiman Said Shabal & 2 Others
    SCK Petition No. 10 of 2013 [2014] eKLR
  • Stephen Mwaura Njuguna vs Dougals Kamau Ngotho & another
    [2012] eKLR / [2012] KECA 98 (KLR)
  • Matindi & 3 others vs National Assembly of Kenya & 4 others
    (2023) KEHC 19534 (KLR)
  • Morjaria vs Abdalla
    [1984] eKLR
  • Kipngetich Kalya Kones (Suing as the Administrator of the estate of Kipkalya Kiprono Kones (deceased) vs Wilson Kiplangat Kones
    [2021] eKLR
Jurisdiction invoked
First-instance jurisdiction over land dispute; ELC subject-matter jurisdiction considered under Article 162 of the Constitution (implied); preliminary objection on jurisdiction, locus standi and Order 4 rule 4 Civil Procedure Rules

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, "Chemitei & another v Chepkok & 2 others (Environment & Land Case 67 of 2019) [2025] KEELC 4358 (KLR)", Case Analysis (2025). Not stated in judgment (Originating Summons dated 22nd August 2003). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4358/eng@2025-06-11

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