Ndungu & 2 others (Suing for and on Behalf of Themselves and 300 others Who Are Squatters and Official Allottees of Njoro Kiwanja Ndege Settlers) v Attorney General & 4 others (Environment and Land Petition E002 of 2025) [2025] KEELC 7045 (KLR)
The bottom line
#The Environment and Land Court in Nakuru ruled that res judicata claims requiring evidence cannot be used to strike out a petition at the preliminary stage.
What this practically means
#Executive summary
#Key legal issues
#Whether res judicata can be sustained as a preliminary objection
No, where the plea depends on facts requiring evidence - here the judgment in the former suit had to be received and interrogated; the objection was therefore not a valid preliminary objection
Applying Mukisa Biscuit and George Oraro, a preliminary objection must raise a pure point of law and must not deal with disputed facts or derive from factual information to be tested by rules of evidence. The court held it needed at least a copy of the Nakuru E083 of 2021 judgment to determine whether the former suit was heard and determined on merit and the issues raised therein, making the plea factual.
Proper procedural vehicle for raising res judicata on facts
The respondents ought to have filed an application supported by affidavit evidence rather than a preliminary objection
Since ascertainment of the alleged prior determination of ELC E083 of 2021 depends on evidence, the court held the respondents should have filed an application enabling the court to ascertain the facts, whether by viva voce or affidavit evidence, rather than by way of preliminary objection.
Legal principles established
#- A plea of res judicata which requires the court to receive and interrogate evidence, such as the prior judgment in the former suit, does not qualify as a preliminary objection on a pure point of law
Court orders
#- 1.The preliminary objection of the 1st and 2nd Respondents is dismissed with costs in the cause
- Jurisdiction invoked
- Article 22 & 23 of the Constitution (constitutional petition enforcing Bill of Rights) read with Section 7 of the Civil Procedure Act on res judicata
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndungu & 2 others (Suing for and on Behalf of Themselves and 300 others Who Are Squatters and Official Allottees of Njoro Kiwanja Ndege Settlers) v Attorney General & 4 others (Environment and Land Petition E002 of 2025) [2025] KEELC 7045 (KLR)", Case Analysis (2025). Petition dated 24th April 2025 (Nakuru ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7045/eng@2025-10-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.