Ndemo v Ondoro & 4 others (Environment and Land Case E004 of 2022) [2025] KEELC 6754 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed two preliminary objections, confirming that res judicata and limitation arguments need evidence and cannot end a case early.
What this practically means
#Executive summary
#Key legal issues
#Whether res judicata can be determined on a preliminary objection
It cannot; proving a former suit, its parties and its determination requires evidence, so the plea should be raised by formal application
The court applied the Mukisa Biscuit test: a preliminary objection must be a pure point of law on assumed pleaded facts. To uphold res judicata the court would need to receive evidence on the existence, parties and outcomes of the prior suits the First Defendant relied on, and she even annexed pleadings and judgments to the objection, which is unacceptable. Citing Nyanyuki v Openda, the court held the plea belongs in a formal application.
Whether the suit is barred by limitation under Sections 4 and 7 of the Limitation of Actions Act
The objection fails because the date the cause of action arose, including discovery of fraud, is a factual question requiring evidence at trial
The defendants argued the claim, founded on a 1982 purchase and 1995 subdivisions, exceeded the 12-year limitation period. The court held, citing South Nyanza Sugar Company Limited v Mboga, that when a cause of action arose is intensely factual, and evidence on dates including discovery of pleaded fraud would have to be received and weighed at trial; therefore the plea is not a valid preliminary objection.
Legal principles established
#- A preliminary objection must raise a pure point of law pleaded or arising by clear implication from the pleadings, and cannot be raised where facts must be ascertained or judicial discretion exercised
- A preliminary objection must rely solely on facts pleaded by the opposing party; annexing documents and calling for evidence is impermissible
- Res judicata is not a pure point of law and should be raised through a formal application since its proof requires evidence
Court orders
#- 1.The Second Defendant's Notice of Preliminary Objection dated 15th April 2024 is dismissed
- 2.The First Defendant's Notice of Preliminary Objection dated 11th November 2024 is dismissed
- 3.Costs of the objections to the Plaintiff
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndemo v Ondoro & 4 others (Environment and Land Case E004 of 2022) [2025] KEELC 6754 (KLR)", Case Analysis (2025). Not stated in the judgment (ELC suit at Nyamira). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6754/eng@2025-10-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.