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ELCDismissedOriginating Summons dated 8th April 2025· [2026] KEELC 356 (KLR)

Daniel Kenneth Advocates LLP v Muthee Kihiko & Associates LLP also known as Kihiko N & M Law Advocates Muthee-Kihiko Advocates LLP Muthee- Kihiko & Associates LLP & Muthee Kihiko Advocates LLP & another; Reliable Food Logistics Limited & 2 others (Interested Parties) (Environment and Land Case E232 of 2025) [2026] KEELC 356 (KLR)

Environment and Land Court
29 January 2026
1,073 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed you cannot relitigate jurisdiction already decided between the same parties, dismissing the objection with costs.

What this practically means

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Executive summary

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The applicant, the firm of Rashid Obayi Advocates, filed an originating summons dated 8th April 2025 seeking orders to enforce a professional undertaking dated 16th November 2023. It sought, pending hearing, to restrain the respondents from transferring or releasing Ksh 13,000,000 paid by the firm of Daniel & Kenneth Advocates LLP in respect of the purchase of LR No. Nairobi/Block 160/4; to compel Muthee Kihiko & Associates LLP to deposit the sum in a joint interest-earning account; to render an account of the funds and accrued interest; and to honour the undertaking by refunding the sum. The respondents filed a notice of preliminary objection dated 30th May 2025 contending that the court lacked jurisdiction, relying on authority to the effect that enforcement of a professional undertaking is a commercial rather than an environmental matter for the High Court. The applicant responded that the jurisdictional issue was res judicata, having been determined by the High Court in HCCC/E108/2025 on 25th April 2025 (where the court held the matter fell under the ELC by dint of section 13 of the ELC Act) and again by this court on 20th May 2025. Applying the test in Bernard Mugo Ndegwa v James Nderitu Githae, the court found all elements of res judicata satisfied: the identical issue had been finally determined by a court of concurrent jurisdiction between the same parties. The preliminary objection was dismissed with costs to the applicant.

Key legal issues

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01

Whether the respondents' preliminary objection on jurisdiction was barred by res judicata

Holding

The preliminary objection was res judicata; jurisdiction had been finally determined by the High Court on 25th April 2025 and by this court on 20th May 2025 between the same parties.

Reasoning

The High Court had on 25th April 2025 ruled that the matter fell under the jurisdiction of the ELC by dint of section 13 of the ELC Act. The issue now raised (jurisdiction) was identical, the parties the same, the courts of concurrent jurisdiction, and the earlier decision final. The respondents could not relitigate the issue before this court.

p. 3
02

Whether the ELC has jurisdiction to entertain an application to enforce a professional undertaking relating to a sale of land

Holding

The court found the application went beyond a mere professional undertaking and touched on breach of a contract for sale of land, which lies within ELC jurisdiction.

Reasoning

The applicant's counsel argued the dispute concerned breach of a contract for sale of land, not merely a commercial undertaking. No positive finding was needed since the objection was disposed of on res judicata grounds.

p. 2

Legal principles established

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  • A party alleging res judicata must establish identity of issues, sameness of parties, concurrence of jurisdiction, sameness of subject matter and finality of the prior determination
  • An issue of jurisdiction finally determined by a court of concurrent jurisdiction cannot be relitigated

Court orders

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  1. 1.The notice of preliminary objection dated 30th May 2025 is dismissed with costs to the applicant
Jurisdiction invoked
Section 13 of the Environment and Land Court Act; Section 7 of the Civil Procedure Act (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, "Daniel Kenneth Advocates LLP v Muthee Kihiko & Associates LLP also known as Kihiko N & M Law Advocates Muthee-Kihiko Advocates LLP Muthee- Kihiko & Associates LLP & Muthee Kihiko Advocates LLP & another; Reliable Food Logistics Limited & 2 others (Interested Parties) (Environment and Land Case E232 of 2025) [2026] KEELC 356 (KLR)", Case Analysis (2026). Originating Summons dated 8th April 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/356/eng@2026-01-29

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