Kitur v Misoi & 3 others (Environment and Land Case E081 of 2025) [2026] KEELC 495 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out preliminary objections because they relied on disputed facts, confirming res judicata must be raised by Notice of Motion instead.
What this practically means
#Executive summary
#Key legal issues
#Whether the grounds raised constituted a proper preliminary objection
The preliminary objections did not meet the threshold of a preliminary objection because they were marred by contested factual issues requiring evidence
Applying Mukhisa Biscuit and Oraro v Mbaja, the court found that determining res judicata would require calling for the Kapsabet ELC Appeal No. 1 of 2022 file, examining pleadings and issues, and ascertaining whether service of notice under section 13A of the Government Proceedings Act was effected - matters requiring evidence and potentially judicial discretion.
Whether res judicata can be raised by way of preliminary objection
No - the court adopted the position that res judicata is best raised by Notice of Motion with pleadings annexed
Relying on George Kamau Kimani v County Government of Trans Nzoia, the court held that grounds requiring ascertainment of facts by evidence cannot be brought by way of preliminary objection; a res judicata ground should be raised by Notice of Motion to which pleadings are annexed.
Whether the suit offended the Government Proceedings Act, Cap 40
The objection failed; the defendants did not specify the section offended, and service of the statutory notice was a contested factual issue
The 2nd to 4th defendants did not outline the exact section of the Government Proceedings Act offended. The plaintiff asserted he served a notice of intention to sue; whether such service occurred could only be proved by evidence, so the ground was not a pure point of law.
Costs of the preliminary objections
Costs follow the event; the plaintiff, having succeeded, was entitled to costs
The court applied the settled principle that costs follow the event and, having found the objections unmerited, awarded costs to the plaintiff.
Legal principles established
#- A preliminary objection must raise a pure point of law on assumed facts and cannot be raised where facts must be ascertained or discretion exercised
- Res judicata cannot properly be determined by way of preliminary objection where it requires interrogation of pleadings and evidence from the previous suit
Court orders
#- 1.The Preliminary Objections raised by the 1st defendant on 03.03.2025 and by the 2nd, 3rd and 4th defendants in paragraph 6 of the Statement of Defence dated 20.02.2024 are not merited and are struck out
- 2.Costs of the preliminary objections to the Plaintiff
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court (no specific constitutional/statutory provision cited in the ruling)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kitur v Misoi & 3 others (Environment and Land Case E081 of 2025) [2026] KEELC 495 (KLR)", Case Analysis (2026). Not stated in the judgment (Kapsabet ELC suit; prior proceedings: Kapsabet ELC Appeal No. 1 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/495/eng@2026-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.