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ELCDismissedNot stated in judgment (Preliminary Objection dated 13-6-2024)· [2025] KEELC 5589 (KLR)

Chege v Njaga (Enviromental and Land Originating Summons E018 of 2023) [2025] KEELC 5589 (KLR)

Environment and Land Court
28 July 2025
832 words in judgment
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The bottom line

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The Environment and Land Court in Murang'a dismissed a defendant's attempt to strike out a land suit, ruling that preliminary objections must be pure points of law with no disputed facts.

What this practically means

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Executive summary

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The Defendant raised a preliminary objection dated 13 June 2024 contending that the Plaintiff lacked locus standi to institute the suit, and sought its striking out with costs. In submissions, the Defendant's counsel also urged that the suit was res judicata, the subject property having been subject to litigation before two courts of similar and competent jurisdiction. The court (M.N. Gicheru J) dismissed the objection. First, the judgment in the succession cause was not exhibited, and the Defendant's own affidavit indicated that Chege Mugwe, the Plaintiff's husband, was never heard in those succession proceedings. Second, the outcome of ELC Case No. 171 of 2015 (Nairobi) was unknown and it was for the Defendant to file it; it could not be shown the suit was heard and determined on merit. Third, High Court Civil Appeal No. 366 of 2009 (Nyeri) had found that the Kiharu Land Disputes Tribunal and the Nyeri Provincial Land Appeals Committee lacked jurisdiction over the ownership dispute and invalidated the award of 21 May 2009 without itself resolving the dispute. The court also noted that the ELC's jurisdiction over use, title and occupation of L.R. No. Loc.8/Kari-Karuru/394 differs from probate jurisdiction, and that no pleading showed a prior determination by a competent court. Applying Oraro v Mbaya and IEBC v Jane Cheperenger, the court held the objection was not a pure point of law, as many facts required ascertainment. The preliminary objection was dismissed with costs to the Plaintiff.

Key legal issues

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01

Whether the suit is res judicata / Plaintiff lacks locus

Holding

The objection fails because the claim has never been heard and determined on merit by a court or tribunal with jurisdiction

Reasoning

The succession cause judgment was not exhibited and the husband of the Plaintiff was apparently never heard in it; the outcome of ELC Case No. 171 of 2015 at Nairobi is unknown; and the High Court at Nyeri nullified the tribunal and appeals committee decisions for want of jurisdiction without itself resolving the dispute. No pleading shows a prior competent determination.

p. 2
02

Whether the preliminary objection is a pure point of law

Holding

It is not; it requires ascertainment of many disputed facts and therefore cannot succeed

Reasoning

Relying on Oraro v Mbaya and IEBC v Jane Cheperenger, the court held that a preliminary objection must be clear, specific, pleaded and not depend on contested facts or judicial discretion. Here, facts concerning the succession proceedings, the Nairobi ELC outcome and alleged lease refunds required evidence.

p. 2

Legal principles established

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  • A preliminary objection can only succeed if it is a pure point of law, not involving disputed facts or evidence
  • A party relying on a prior determination to found a res judicata or locus objection must place that determination before the court

Court orders

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  1. 1.The preliminary objection dated 13-6-2024 is dismissed
  2. 2.Costs of the preliminary objection to the Plaintiff

Authorities

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Cases cited (2)

  • Oraro v. Mbaya
    [2005] eKLR
  • IEBC v Jane Cheperenger and 2 Others
    [2015] eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to environment, use, occupation of and title to land

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, "Chege v Njaga (Enviromental and Land Originating Summons E018 of 2023) [2025] KEELC 5589 (KLR)", Case Analysis (2025). Not stated in judgment (Preliminary Objection dated 13-6-2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5589/eng@2025-07-28

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