Cherogony v Chiri (Environment and Land Case E082 of 2025) [2025] KEELC 7772 (KLR)
The bottom line
#A Nakuru landowner suing to stop eviction lost everything when the court found he was re-litigating an adverse possession claim he had already lost.
What this practically means
#Executive summary
#Key legal issues
#Whether res judicata can be raised by way of preliminary objection
It cannot be raised by preliminary objection; however, where supported by a replying affidavit and documentary proof such as a decree, the court may act on it
Relying on George Kamau Kimani v County Government of Trans-Nzoia, res judicata is best raised by notice of motion with annexed pleadings. But since the Respondent filed a replying affidavit attaching the decree in ELC No. 212 of 2013 (O.S) between the same parties over the same subject matter, the court found the suit res judicata notwithstanding the defective form.
Whether the Applicant's suit and injunction application were barred by res judicata
Yes; the suit was res judicata as the same issues of adverse possession over the same parcels had been heard and determined between the same parties in Nakuru ELC No. 212 of 2013 (O.S), dismissed on 28th March 2025
The Respondent attached a decree and Plaint showing the subject matter in both cases was adverse possession and the parties were the same, the Respondent having been the 8th Defendant in the earlier suit. The court held the Applicant was attempting to circumvent res judicata by re-litigating a matter already determined by a competent court.
Whether limitation/adverse possession prematurity can be determined as a preliminary objection
No; limitation of time is a matter for determination at trial on evidence
Following Sichuan Huashi Enterprises Corp. Limited v Micheal Misiko Muhindi and the Oruta v Nyamato and Divecon authorities, the court held that the defence of limitation cannot be dealt with summarily or as a preliminary objection; it should be formulated as an issue for determination at trial on evidence adduced.
Legal principles established
#- Res judicata and limitation of time cannot be raised by way of preliminary objection; res judicata is properly raised by notice of motion with pleadings annexed, and limitation is a matter for trial on evidence
- Where res judicata is glaring and a replying affidavit with supporting documentation (judgment or decree) shows the same parties litigated the same subject matter, the court should not ignore it
Court orders
#- 1.The Plaintiff/Applicant's Notice of Motion application dated 18th August, 2025, is dismissed as lacking merit
- 2.The Plaintiff/Applicant's suit dated 18th August 2025 is struck out as res judicata
- 3.Costs of the suit awarded to the Defendant/Respondent
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court (no specific constitutional or statutory provision stated)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cherogony v Chiri (Environment and Land Case E082 of 2025) [2025] KEELC 7772 (KLR)", Case Analysis (2025). ELC No. 212 of 2013 (O.S) referenced; suit dated 18th August 2025 (number not stated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7772/eng@2025-11-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.