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ELCStruck OutLand Case E054 of 2025· [2026] KEELC 1627 (KLR)

Ndungu & another v Ndungu & another (Land Case E054 of 2025) (Environment and Land) [2026] KEELC 1627 (KLR)

Environment and Land Court
19 March 2026
3,341 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Naivasha struck out a land dispute because the same family land issue had already been finally decided by the Court of Appeal.

What this practically means

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Executive summary

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The Plaintiffs, administrators of the estate of Simon Ndung'u Kihonge (Deceased), filed a plaint and notice of motion on 24th November 2025 seeking prohibitory orders and injunctions over L.R. No. Naivasha/Mwichiringiri/Block 4/311 & 312, damages for conversion and trespass, and an order referring the dispute to court-annexed mediation. The 1st Defendant filed a preliminary objection under Sections 6 and 7 of the Civil Procedure Act, arguing the suit was a succession matter conclusively determined by the High Court (Nairobi HCSC No. 1638 of 1993) and the Court of Appeal (COACA No. 305 of 2018), was res judicata and sub judice in other forums, and amounted to an attempt to overrule a superior court. The Plaintiffs countered that the objection was a disguised defence requiring investigation of facts and that the ELC had jurisdiction to protect occupation of a matrimonial home. Relying on Mukisa Biscuit, John Florence Maritime Services, Gurbachan Singh Kalsi and Macharia v Kenya Commercial Bank, the court framed the issue of res judicata. It noted the Court of Appeal had expressly distributed the suit properties equally among named heirs and the grant was amended on 8th November 2021. The court held the suit was res judicata, that raising the matrimonial-home claim now was 'litigation by instalments', and that the ELC could not stay or overrule a Court of Appeal decree. The preliminary objection was upheld, the suit struck out in its entirety, interim orders vacated, and costs awarded to the Defendants.

Key legal issues

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01

Jurisdiction of the ELC over a dispute rooted in a concluded succession matter

Holding

The ELC lacks jurisdiction to entertain a suit whose effect would be to vary or stay a superior court's distribution of an estate

Reasoning

Jurisdiction flows from the Constitution and legislation; a court cannot arrogate to itself jurisdiction beyond that conferred by law. The ownership of the suit properties had been conclusively determined by the Court of Appeal in a succession appeal, and the amended certificate of confirmation of grant gave the heirs equal shares. This court could not sit on appeal over or stay a Court of Appeal decree; the Plaintiffs' suit was an attempt to do exactly that, and the court must down tools.

p. 7
02

Res judicata

Holding

The Plaintiffs' suit was res judicata because ownership of the exact suit properties had been finalized by the Court of Appeal between the same parties/claimants under the same title

Reasoning

Applying Section 7 of the Civil Procedure Act and the elements in John Florence Maritime Services, the court compared the pleadings and decisions in the succession cause and the appeal. The Court of Appeal judgment expressly distributed Naivasha/Mwichiringiri/Block 4/311 and 312 to the heirs. The claim of matrimonial-home rights ought to have been raised in the 28-year succession battle; raising it now was litigation by instalments.

p. 6
03

Whether the objection was a proper preliminary objection

Holding

It was a proper preliminary objection since it raised pure points of law without needing to hear evidence

Reasoning

Applying Mukisa Biscuit, the court found the objection did not require new evidence but invited the court to take judicial notice of the finality of the Court of Appeal judgment. The Plaintiffs' argument that the objection required investigation of facts was rejected.

p. 7

Legal principles established

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  • A preliminary objection consisting of a pure point of law may dispose of the suit without hearing evidence
  • Res judicata extends to matters which ought to have been raised in the earlier suit
  • A subordinate court cannot stay execution of or overrule a superior court's judgment

Court orders

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  1. 1.The Preliminary Objection dated 1st December 2025 is upheld
  2. 2.The Plaintiffs' suit and application dated 24th November 2025 are declared res judicata, a collateral attack on the Court of Appeal, and a gross abuse of the court process
  3. 3.The suit is struck out in its entirety with costs to the Defendants
  4. 4.The interim orders issued are vacated

Authorities

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Legislation

  • Civil Procedure ActSections 6 and 7
  • Civil Procedure RulesOrder 2 Rule 15; Order 51 Rule 14 1(b)
  • Constitution of KenyaArticle 162(2)(b) and 162(3)
  • Environment and Land Court ActSection 13(2)

Cases cited (8)

  • Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd.
    (1969) EA 696
  • Nitin Properties Ltd v. Singh Kalsi & another
    [1995] eKLR
  • Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others
    [2012] eKLR; (Application 2 of 2011) [2012] KESC 8 (KLR)
  • Bundotich v. Managing Director Kenya Airways Authority and Another
    (2007) 2 E.A 90
  • Catherine Kawira v Muriungi Kirigia
    [2016] eKLR
  • John Florence Maritime Services Ltd & Another v Cabinet Secretary Transport and Infrastructure & 3 Others
    Petition 17 of 2015 (2021) KESC 39 (KLR)
  • Gurbachan Singh Kalsi v Yowani Ekori
    [1958] EA 450
  • Jane Nyambura Ndungu v Beatrice Wangari Ndungu & 2 others
    [2021] KECA 1017 (KLR)
Jurisdiction invoked
Article 162(2)(b) of the Constitution and the Environment and Land Court Act (Section 13(2)); suit decided on jurisdiction under Section 7 of the Civil Procedure Act

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, "Ndungu & another v Ndungu & another (Land Case E054 of 2025)  (Environment and Land) [2026] KEELC 1627 (KLR)", Case Analysis (2026). Land Case E054 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1627/eng@2026-03-19

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