Ogega & 12 others v Ayado & 10 others (Enviromental and Land Originating Summons E003 of 2023) [2025] KEELC 5105 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that res judicata arguments need evidence and cannot end a lawsuit through a preliminary objection.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Preliminary Objection dated 23/09/2024 raises pure points of law fit for determination as a preliminary objection
- 2.Whether the suit is res judicata or sub judice having regard to Kisii HCCC No. 82 of 1988 and Kisii ELC No. 377 of 2014
- 3.Whether the Plaintiffs are non-suited and whether the suit is an abuse of the court process
Key legal issues
#Whether res judicata can be determined on a preliminary objection
No - determining whether a prior suit was heard and determined requires findings of fact and probing of evidence, so res judicata must be raised by Notice of Motion with pleadings annexed
The court adopted the Mukisa Biscuits and Oraro v Mbaja definitions requiring a preliminary objection to raise a pure point of law on assumed facts. Ascertainment of whether Kisii HCCC No. 82 of 1988 and Kisii ELC No. 377 of 2014 were conclusively determined would require factual findings, evidence and probing, which fall outside a preliminary objection.
Whether the seven points of the objection disclosed any point of law
None did; all were points of fact requiring drawn-out argument
The court found that of the seven grounds of the objection, no single point of law emerged. Because the objection rested on contested factual matters concerning the prior suits and parties, it failed the preliminary objection test and was struck down as frivolous and an abuse of process.
Legal principles established
#- A preliminary objection must raise only pure points of law and must not depend on facts requiring proof
- Res judicata cannot properly be raised by way of preliminary objection; it should be raised by Notice of Motion with pleadings annexed
Court orders
#- 1.The Preliminary Objection dated 23rd September 2024 is dismissed in its entirety
- 2.The Plaintiffs are awarded costs of the Preliminary Objection
- 3.Mention on 29th September 2025 for compliance
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over the suit land LR No. Suna West/Wasweta 11/1054
Relief refused
#Dismissal of the main suit with costs to the Defendants on grounds of res judicata/sub judice
The objection raised points of fact requiring evidence, not pure points of law, and was frivolous and an abuse of court process
Costs
Costs of the Preliminary Objection awarded to the Plaintiffs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
One cannot raise a ground of res judicata by way of Preliminary Objection.
A Preliminary Objection must therefore must only raise matters of law and must not contain matters of fact that require to be proved through evidence or matters that are in controversy.
The Preliminary Objection dated 23rd September 2024 is dismissed in its entirety and the Plaintifis are awarded costs.
Mention on 29th September 2025 for compliance.
Issues in the judgment
#The judgment does not state the case title or case number of the suit in which the Preliminary Objection was raised; parties are referred to only generically as Plaintiffs and Defendants
The judgment contains a typo rendering 'Plaintiffs' as 'Plaintifis' in multiple places, and the court appears to apply the Kimani case holding (which favoured the objector's position) yet dismisses the objection without reconciling this
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ogega & 12 others v Ayado & 10 others (Enviromental and Land Originating Summons E003 of 2023) [2025] KEELC 5105 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5105/eng@2025-06-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.