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ELCDismissedNot stated in the excerpt (Amended Plaint dated 17th October, 2024)· [2025] KEELC 4938 (KLR)

Mathonye & another (Suing as Personal Administrators of the Estate of Mathonye Agwambo) v Olale & 3 others (Land Case E006 of 2023) [2025] KEELC 4938 (KLR)

Environment and Land Court
3 July 2025
1,205 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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The court threw out a defendant's attempt to end a land case on res judicata grounds because they failed to provide the earlier case's pleadings and judgment.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kisumu (E. Asati, J) delivered on 3rd July 2025 on a Notice of Preliminary Objection dated 29th October 2024 raised by the 2nd Defendant. The 2nd Defendant argued that the suit was res judicata, the Plaintiffs having previously filed Kisumu ELC Case No. 877 of 2015, in which judgment was delivered on 31st May 2022 by Hon. Justice A. Ombwayo. Counsel for the 2nd Defendant relied on section 7 of the Civil Procedure Act and submitted that the prayers in the amended plaint dated 17th October 2024 were the same as those determined in the former suit, and that litigation must come to an end, citing Galaxy Paints and Gladys Nduku Nthuku. The Plaintiffs opposed, citing Mukisa Biscuits, and contended that the objection rested on facts requiring evidence, and that fresh happenings since the former judgment necessitated fresh action. The court restated the threshold for preliminary objections from Mukisa Biscuits, Avtar Singh Bhamra and Oraro v Mbaja: a preliminary objection must be a pure point of law arising from the pleadings, incapable of success where facts must be ascertained. While accepting that res judicata is a point of law, the court found that neither party exhibited the pleadings, proceedings or judgment of the former suit, and the burden of availing them lay on the 2nd Defendant. It further held that the alleged fresh happenings could only be determined upon hearing evidence. The preliminary objection was dismissed, with no order as to costs, and the suit was directed to be heard on the merits.

Key legal issues

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01

Whether a plea of res judicata can be sustained by way of preliminary objection without exhibiting the pleadings and judgment of the former suit

Holding

It cannot; the party raising res judicata must exhibit the pleadings and decision of the former suit, failing which the objection fails

Reasoning

The court accepted that res judicata under section 7 of the Civil Procedure Act is a pure point of law capable of supporting a preliminary objection. However, to ascertain res judicata the court must compare the pleadings and decision in the former suit with the current suit. Neither party exhibited the pleadings, proceedings or judgment of Kisumu ELC Case No. 877 of 2015, so the court could not determine whether the issues, parties and remedies were the same. The burden lay on the 2nd Defendant.

p. 3
02

Whether the preliminary objection met the Mukisa Biscuits threshold of a pure point of law

Holding

Although framed on res judicata (a point of law), the objection failed because the alleged fresh happenings after the former judgment required evidence

Reasoning

The Plaintiff contended that fresh happenings since the judgment in the former suit necessitated fresh action. The court held that such an assertion can only be determined through the hearing of evidence, and a preliminary objection cannot succeed where facts must be ascertained. Accordingly the objection was not proved and the suit was directed to proceed to full hearing on the merits.

p. 3

Legal principles established

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  • A preliminary objection must be based on pure points of law arising from the pleadings and cannot succeed where facts must be ascertained through evidence
  • To establish res judicata, the court must have the pleadings and decision in the former suit; the burden of availing them lies on the party asserting res judicata

Court orders

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  1. 1.The preliminary objection dated 29th October, 2024 is dismissed
  2. 2.No order as to costs
  3. 3.The suit to be heard on merit
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under section 7 of the Civil Procedure Act (res judicata objection); constitutional provision not stated in the judgment

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, "Mathonye & another (Suing as Personal Administrators of the Estate of Mathonye Agwambo) v Olale & 3 others (Land Case E006 of 2023) [2025] KEELC 4938 (KLR)", Case Analysis (2025). Not stated in the excerpt (Amended Plaint dated 17th October, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4938/eng@2025-07-03

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