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ELCDismissedNot stated in the judgment (Environment and Land Court suit; relates to HCCOMM No. E387 of 2022)· [2026] KEELC 1135 (KLR)

Shah & another v Shah & 2 others (Environment and Land Case E318 of 2025) [2026] KEELC 1135 (KLR)

Environment and Land Court
2 March 2026
4,693 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a property owners' challenge to a bank's planned auction because their claims had already been decided in an earlier case.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court by C.G. Mbogo J dealt with two notices of motion and a notice of preliminary objection. The plaintiffs, registered owners of House No. 9 Magnolia Hills on LR No. 2951/2011, sought a temporary injunction restraining the 2nd and 3rd defendants from auctioning the property, alleging the 2018 charge securing a Kshs.260,000,000 facility was fully repaid, and that subsequent facilities extended to Tusker Mattresses Limited were secured over their property without consent, supported by allegedly fraudulent and irregular enforcement notices issued in 2025. The 2nd defendant, Diamond Trust Bank Kenya Limited, filed a preliminary objection asserting that the suit and application were barred by res judicata under Section 7 of the Civil Procedure Act, having been determined in HCCOMM No. E387 of 2022, judgment delivered on 22nd April 2025, and that the supporting affidavit offended Section 5 of the Oaths and Statutory Declarations Act. The plaintiffs sought to strike out the objection as not raising pure points of law per Mukisa Biscuits. The court agreed the objection did not raise pure points of law since res judicata would require an evidentiary inquiry, and found the affidavit compliant as to the jurat. However, on the substantive question, the court held the suit res judicata: prayers (i) to (vi) were dealt with in the former suit, and adding the 1st and 3rd defendants could not evade the doctrine, fraud and lack of consent having been raisable earlier. All applications were dismissed and the amended plaint struck out with costs to the 2nd defendant.

Key legal issues

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01

Competence of the preliminary objection

Holding

Grounds 1 and 2 of the preliminary objection (res judicata and abuse of process/forum shopping) do not raise pure points of law because determination would require combing through evidence; ground 3 on the affidavit failed on the facts.

Reasoning

The court applied Mukisa Biscuits and John Musakali. Determining res judicata would require examining pleadings not in the file and evidence, so it is unsuitable for a preliminary objection. On the affidavit, the name, place and address of the notary public commissioning it in the United Kingdom were clearly indicated, so Section 5 of the Oaths and Statutory Declarations Act was not breached.

p. 6
02

Whether the suit is barred by res judicata

Holding

Yes. The suit is res judicata by virtue of the judgment in HCCOMM No. E387 of 2022 delivered on 22nd April, 2025.

Reasoning

Prayers (i) to (vi) of the amended plaint were dealt with in the former suit. The addition of the 1st and 3rd defendants as parties cannot defeat the doctrine. Fraud and lack of consent could have been raised in the former suit; litigants cannot litigate in piecemeal, and post-judgment issues were a tactic to frustrate the 2nd defendant from enjoying the fruits of its judgment.

p. 9
03

Validity of the plaintiff's supporting affidavit

Holding

The affidavit complies with Section 5 of the Oaths and Statutory Declarations Act.

Reasoning

The jurat clearly shows the name, place and address of the notary public who commissioned it, and both the deponents and the commissioner for oaths are based in the United Kingdom, so no violation was established.

p. 6
04

Interlocutory injunction threshold

Holding

Not reached on the merits because the suit was found res judicata and dismissed; the motion dated 26th June 2025 lacked merit.

Reasoning

Although the court framed the issue, the finding of res judicata disposed of the application without a merits assessment of the Giella-type injunction criteria.

p. 9

Legal principles established

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  • Parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit
  • Res judicata extends not only to points actually decided but to every point which properly belonged to the subject of litigation and which could have been brought forward
  • A preliminary objection on res judicata requiring an inquiry into evidence is not a pure point of law

Court orders

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  1. 1.The notice of preliminary objection dated 21st July, 2025 is dismissed
  2. 2.The notice of motion dated 26th June, 2025 is dismissed
  3. 3.The notice of motion dated 17th September, 2025 is dismissed
  4. 4.The amended plaint dated 19th July, 2025 is struck out with costs to the 2nd defendant/respondent
Jurisdiction invoked
Articles 50 and 159(2) of the Constitution; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 2 Rule 15 and Order 51 Rule 1 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, "Shah & another v Shah & 2 others (Environment and Land Case E318 of 2025) [2026] KEELC 1135 (KLR)", Case Analysis (2026). Not stated in the judgment (Environment and Land Court suit; relates to HCCOMM No. E387 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1135/eng@2026-03-02

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