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ELCDismissedNot stated in the judgment as provided· [2025] KEELC 8259 (KLR)

Okaka v Ojango & another (Environment and Land Case E026 of 2024) [2025] KEELC 8259 (KLR)

Environment and Land Court
19 November 2025
2,822 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kakamega dismissed a family land trust suit because the same trust claim had already been decided in an earlier case involving the plaintiff's father.

What this practically means

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Executive summary

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In this Environment and Land Court suit at Kakamega, the plaintiff Emmanuel Okonda Akaka claimed that parcel No. Kisa/Wambulishe/2032 and 2033 was family/ancestral land held in customary trust for him and sought its transfer. The 1st and 2nd defendants raised a preliminary objection and a notice of motion dated 12/05/2025 contending the suit was res judicata, having been determined in Kakamega High Court Criminal Appeal No. 14 of 2018 and Kakamega ELC Case No. 66 of 2019 (formerly HCC No. 93 of 2008, in which the plaintiff's father, later substituted by the plaintiff's brother, had claimed the property on adverse possession and trust). Cross-applications for temporary injunctions were also pending: the plaintiff sought to restrain eviction, while the defendants sought to restrain burial of the plaintiff's brother on the suit property. The court struck out the preliminary objection, holding that proving res judicata requires evidence and is therefore not a pure point of law. On the motion, however, the court found the trust claim had been directly and substantially determined in the former ELC suit between the same parties or their privies litigating under the same title, and that the criminal appeal could not found res judicata given the distinct criminal jurisdiction. The suit was dismissed as res judicata with costs to the 1st and 2nd defendants, and both injunction applications were rendered moot.

Key legal issues

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01

Whether the res judicata objection could be raised as a preliminary objection

Holding

No - proving res judicata requires evidence of pleadings and decisions in the former suit, so it is not a pure point of law; the preliminary objection was struck out.

Reasoning

Section 7 of the Civil Procedure Act requires an applicant to present evidence of pleadings of a former suit between the same parties or their privies and a decision on the merits by a competent court. Such proof requires evidence; a matter requiring evidence is not a pure point of law. The proper vehicle is a notice of motion with supporting affidavit, giving the opponent an opportunity to rebut. The objection was therefore struck out, though the same ground was fully argued via the notice of motion dated 12/05/2025.

p. 2
02

Whether the suit is res judicata vis-à-vis Kakamega HCC Criminal Appeal 14 of 2018

Holding

No - the criminal appeal concerned procuring execution of documents by false pretenses, did not determine ownership or trust, and criminal and civil jurisdictions are distinct.

Reasoning

The criminal appeal concerned charges of procuring execution of documents by false pretenses, prosecuted between the State and the defendants; it did not determine whether the suit property was held in trust for the plaintiff. Because a criminal determination over the same subject matter cannot render a civil suit res judicata given the different jurisdiction invoked, no res judicata arose from that appeal.

p. 5
03

Whether the suit is res judicata vis-à-vis Kakamega ELC Case No. 66 of 2019 (formerly HCC No. 93 of 2008)

Holding

Yes - the question of customary/family trust was directly and substantially raised and determined in the former suit between parties litigating under the same title; the suit is res judicata.

Reasoning

The plaintiff's father had claimed the suit property on the basis of adverse possession and trust; the trust/family-land question was thus directly and substantially in issue and was finally determined by the ELC, a competent court. The plaintiff, as sibling and privy of the former claimant, was litigating under the same title. Dissatisfaction with the former decision did not license a fresh suit; any remedy lay in appeal.

p. 5

Legal principles established

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  • A res judicata defence requires proof by evidence and therefore cannot be raised as a pure preliminary objection; it should be raised by notice of motion supported by affidavit evidence.
  • A criminal determination over the same subject matter cannot render a subsequent civil suit res judicata because the jurisdictions invoked differ.
  • Res judicata bars a party who stood by while a claim affecting him was litigated, including a sibling who let a family member prosecute the same claim.

Court orders

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  1. 1.The preliminary objection dated 12th May 2025 struck out
  2. 2.The suit dismissed as res judicata with costs to the 1st and 2nd defendants
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act (not expressly cited; inherent on the pleadings)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Okaka v Ojango & another (Environment and Land Case E026 of 2024) [2025] KEELC 8259 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8259/eng@2025-11-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.