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ELCDismissedPetition dated 24th April 2025 (Nakuru ELC)· [2025] KEELC 7045 (KLR)

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)

Environment and Land Court
16 October 2025
2,069 words in judgment
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The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Nakuru, delivered by Antony O. Ombwayo J on 16 October 2025, determined a preliminary objection raised by the 1st and 2nd Respondents in their grounds of opposition dated 14 July 2025 to a petition dated 24 April 2025. The objectors contended that the petition was res judicata, having been directly and substantially in issue in the concluded Nakuru ELC Case No. 83 of 2021 between the same parties over PDP No. R23/2001/3, that it offended the principle that litigation must come to an end, and that Bill of Rights claims are not enforceable between private individuals. The 4th Respondent likewise urged striking out. The Petitioners countered that the parties differed - the previous suit was brought by officials of the association, while the Petitioners sued on their own behalf and for over 300 settlers - and that the issues were distinct. The court framed a single issue: whether the preliminary objection was merited. Applying the Mukisa Biscuit and George Oraro thresholds, and J N & 5 others, the court held that res judicata, as raised, required the court to receive and interrogate evidence, at least a copy of the judgment in Nakuru ELC E083 of 2021, to establish whether the former suit was heard and determined on merit and what issues it raised. Because the plea rested on factual issues requiring affidavit or viva voce evidence, it was not a valid preliminary objection. The objection was dismissed with costs in the cause, leaving the petition to proceed to full hearing. An appeal against the ELC 83 of 2021 judgment (Nakuru CoA E042 of 2025) remains pending.

Key legal issues

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01

Whether res judicata can be sustained as a preliminary objection

Holding

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

Reasoning

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.

p. 4
02

Proper procedural vehicle for raising res judicata on facts

Holding

The respondents ought to have filed an application supported by affidavit evidence rather than a preliminary objection

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 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

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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, "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.