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ELCOtherNot stated in the extract provided· [2025] KEELC 8695 (KLR)

Wagura & another v Kiambu County Government & another (Environment and Land Case E038 of 2023) [2025] KEELC 8695 (KLR)

Environment and Land Court
2 December 2025
1,980 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan land court refused to strike out a duplicate property suit, instead pausing it until the earlier ownership case is decided.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Thika on a preliminary objection dated 29th September 2023 by the 2nd Defendant, asserting that the Plaintiff's suit offends the doctrines of sub judice and res judicata, and on the Defendants' Notice of Motion dated 6th October 2023 seeking that the Plaintiff's Notice of Motion dated 15th August 2023 and the entire suit be struck out and/or stayed pending hearing and determination of Thika ELC No. 29B of 2023. Both matters were canvassed by written submissions. The court framed two issues: whether the preliminary objection was merited and whether the striking-out application was merited. On the preliminary objection, relying on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd, the court held that the objection required inquiry into factual matters such as similarity of parties, fraud allegations and exhaustion of statutory remedies, and therefore was not a pure point of law; it was dismissed. On the application, the court found res judicata inapplicable because the earlier suit remained pending, but held that sub judice under section 6 of the Civil Procedure Act was triggered, as Thika ELC No. 29B of 2023 (formerly Milimani ELC No. 160 of 2021) raises substantially the same issues of ownership of the suit property between largely the same parties. Applying Order 2 Rule 15 and D.T. Dobie & Co Ltd v Muchina, the court declined the drastic remedy of striking out and instead stayed the suit pending determination of Thika ELC No. 29B of 2023. Costs of the application were ordered to be in the cause.

Key legal issues

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01

Whether the Preliminary Objection raising res judicata and sub judice is merited

Holding

Not merited, because it required examination of factual issues and was not a pure point of law

Reasoning

Applying Mukisa Biscuit, the court held that a preliminary objection must rest on matters plainly discernible on the pleadings without recourse to evidence. Since the objection required assessing similarity of parties, validity of fraud allegations and exhaustion of statutory remedies, it ceased to be purely legal and could not succeed at the interlocutory stage.

p. 3
02

Whether the suit offends the doctrines of res judicata and sub judice

Holding

Res judicata was not engaged; sub judice was established because the earlier suit (Milimani ELC No. 160 of 2021, now Thika ELC No. 29B of 2023) raises substantially the same issues between largely the same parties

Reasoning

The court scrutinised the pleadings in both suits and found the prayers strikingly similar, both turning on ownership of the suit property. It emphasised that section 6 speaks of 'matter in issue' rather than 'subject matter', adopting the reasoning in Kenya Bankers Association v Kenya Revenue Authority that the doctrine interrogates identity of issues, not merely prayers.

p. 4
03

Whether the suit should be struck out or stayed

Holding

Striking out declined; the suit stayed pending determination of Thika ELC No. 29B of 2023

Reasoning

Relying on Order 2 Rule 15, Kamara v Galana Oil Kenya Ltd and D.T. Dobie & Co Ltd v Muchina, the court held that striking out is drastic, exceptional and reserved for the clearest of cases. Where sub judice applies, a stay preserves the authority of the court first seized. No manifestly defective pleading was disclosed.

p. 5

Legal principles established

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  • A preliminary objection must raise a pure point of law requiring no factual inquiry
  • Where a subsequent suit is sub judice, the later-filed suit is ordinarily stayed rather than struck out
  • Striking out a suit is a drastic power to be exercised only in the clearest of cases

Court orders

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  1. 1.The Preliminary Objection dated 29th September 2023 is dismissed
  2. 2.The Application dated 6th October 2023 is partially allowed: the suit is stayed pending the hearing and final determination of Thika ELC No. 29B of 2023
  3. 3.The costs of the application shall be in the cause
Jurisdiction invoked
Sections 6 and 7 of the Civil Procedure Act and Order 2 Rule 15 of the Civil Procedure Rules

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, "Wagura & another v Kiambu County Government & another (Environment and Land Case E038 of 2023) [2025] KEELC 8695 (KLR)", Case Analysis (2025). Not stated in the extract provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8695/eng@2025-12-02

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