Amri v Milfan Developers Limited & 3 others (Environment and Land Case E045 of 2025) [2025] KEELC 6993 (KLR)
The bottom line
#You can't be bound by a court case you were never part of, but Kenya's courts now expect you to join that case rather than file a fresh one.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is res judicata given the prior suit Mombasa ELCC E014 of 2022 over the same parcel (3448/III/MN)
The suit is not res judicata because the plaintiff was not a party to the earlier suit and his interests were never heard or determined; but the suit is nonetheless struck out as it wrongly re-litigates the same subject matter by a fresh suit instead of the procedural route in the previous suit.
Applying section 7 of the Civil Procedure Act and the Supreme Court's formulation in Communications Commission of Kenya v Royal Media Services, all conditions must concur, including identity of parties. The plaintiff only came in after the consent judgment was adopted, and his application to set aside it was withdrawn without being heard on merit. However, filing a fresh suit contravenes the overriding objective and risks contradictory decisions; the just course is to revert to the previous suit through joinder or review.
Whether the res judicata and locus standi grounds constitute a pure point of law suitable for a preliminary objection
Yes. The facts relied on by the defendants were not contested by the plaintiff, so the threshold in Mukisa Biscuit Manufacturers was met.
A preliminary objection must be a pure point of law argued on the assumption that all facts pleaded by the other side are correct, and cannot depend on ascertainment of facts or exercise of discretion. Here the plaintiff did not dispute the facts about the earlier suit, the pleadings confirming the same subject matter, so the objection was properly raised, though it ultimately failed on the merits.
Costs
Each party to bear their own costs, since although the defendants' objections failed, the court struck out the suit, which is good reason to depart from the general rule under section 27.
Costs follow the event under section 27 of the Civil Procedure Act unless there is good reason to depart. The defendants lost their application and objection, but the plaintiff's suit was struck out for adopting the wrong procedural route. Given this mixed outcome, the court found it just not to burden any party with the other's costs.
Legal principles established
#- A person who was not a party to a previous suit, and was not heard, cannot be bound by its consent judgment and retains locus standi; such a suit is not res judicata, but the correct route is to seek joinder or review/setting aside in the previous suit rather than filing a fresh suit.
- A preliminary objection must be a pure point of law not dependent on contested facts or the exercise of judicial discretion.
Court orders
#- 1.The notice of preliminary objection is rejected.
- 2.The notice of motion is dismissed.
- 3.This suit is struck out.
- 4.Each party to bear their own costs of this suit.
- Jurisdiction invoked
- Environment and Land Court Act No. 19 of 2011 and Civil Procedure Act chapter 21 (section 7 res judicata; section 1A/1B overriding objective)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Amri v Milfan Developers Limited & 3 others (Environment and Land Case E045 of 2025) [2025] KEELC 6993 (KLR)", Case Analysis (2025). Not stated in judgment (Environment and Land Court, Mombasa; previously before ELC 2, referred 12th May 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6993/eng@2025-10-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.