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ELCOtherNot stated in the judgment (Kapsabet ELC suit; prior proceedings: Kapsabet ELC Appeal No. 1 of 2022)· [2026] KEELC 495 (KLR)

Kitur v Misoi & 3 others (Environment and Land Case E081 of 2025) [2026] KEELC 495 (KLR)

Environment and Land Court
5 February 2026
1,777 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling of the Environment and Land Court at Eldoret on two preliminary objections raised against the plaintiff's suit. The 1st defendant objected that the suit was res judicata, having been determined in Kapsabet ELC Appeal No. 1 of 2022, while the 2nd, 3rd and 4th defendants objected that the suit offended the Government Proceedings Act, Cap 40, as pleaded in paragraph 6 of their statement of defence dated 20th February 2024. The plaintiff, who filed submissions although the defendants filed none, argued that the Kapsabet Land Dispute Tribunal acted without jurisdiction so its award, adopted by the Magistrates' Court, was a nullity, and that the present suit was a continuation directed by the court in Appeal No. 1 of 2022; he also relied on section 13A of the Government Proceedings Act regarding notice of intention to sue. Applying the Mukhisa Biscuit test, the Aviation & Allied Workers Union restatement, and Oraro v Mbaja, the court held that the grounds were not pure points of law: determining res judicata would require interrogating the file, pleadings and evidence of the previous suit, and service of the statutory notice was a contested factual issue. Relying on George Kamau Kimani v County Government of Trans Nzoia, the court held that res judicata cannot be raised by way of preliminary objection. The objections were struck out with costs to the plaintiff, the court declining to consider their merits as an academic exercise.

Key legal issues

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01

Whether the grounds raised constituted a proper preliminary objection

Holding

The preliminary objections did not meet the threshold of a preliminary objection because they were marred by contested factual issues requiring evidence

Reasoning

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.

p. 3
02

Whether res judicata can be raised by way of preliminary objection

Holding

No - the court adopted the position that res judicata is best raised by Notice of Motion with pleadings annexed

Reasoning

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.

p. 3
03

Whether the suit offended the Government Proceedings Act, Cap 40

Holding

The objection failed; the defendants did not specify the section offended, and service of the statutory notice was a contested factual issue

Reasoning

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.

p. 4
04

Costs of the preliminary objections

Holding

Costs follow the event; the plaintiff, having succeeded, was entitled to costs

Reasoning

The court applied the settled principle that costs follow the event and, having found the objections unmerited, awarded costs to the plaintiff.

p. 4

Legal principles established

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  • 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

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  1. 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. 2.Costs of the preliminary objections to the Plaintiff

Authorities

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Legislation

  • Government Proceedings ActCap 40, section 13A

Cases cited (4)

  • Mukhisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    1969 E.A. 696
  • Aviation & Allied Workers Union -v- Kenya Airways Ltd & 3 Others
    Application No. 50 of 2014 [2015] eKLR
  • Oraro -v- Mbaja
    (2005) 1 KLR 141
  • George Kamau Kimani & 4 Others v County Government of Trans Nzoia & Another
    (2014) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court (no specific constitutional/statutory provision cited in the ruling)

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, "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.