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ELCDismissedNot stated in the judgment ( suit pending; ruling on Defendant's Notice of Preliminary Objection dated 28th July, 2025)· [2026] KEELC 1912 (KLR)

Makwana v Shariff & 2 others (Environment and Land Case E073 of 2025) [2026] KEELC 1912 (KLR)

Environment and Land Court
4 March 2026
1,329 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court dismissed a preliminary objection, confirming that res judicata and similar fact-based arguments cannot be raised as pure points of law.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court (Ombwaya J) determined the Defendants' Notice of Preliminary Objection dated 28th July, 2025 raised against the Plaintiff's applications in a land/succession dispute concerning the estate of the late Narandra Meghji Jadavji Makwana. The Defendants raised eleven grounds, including that the application was res judicata following the striking out of a similar suit (HCFOS No. E003 of 2025, High Court Family Division) on 16th June, 2025; that the application contravened Sections 26 of the Land Act, and Sections 29, 31, 34 and 45 of the Law of Succession Act; that the Plaintiff was guilty of laches; that the interlocutory injunction threshold was unmet; that no valid gift was made out; and that the court lacked jurisdiction. Counsel Opwapo appeared for the Defendants and Oduor for the Plaintiff. The court framed a single issue: whether the preliminary objection was merited. Applying Mukisa Biscuit, Nitin Properties, Hassan Ali Joho, George Kamau Kimani and Oraro v Mbaja, the court held that a preliminary objection must be a pure point of law incapable of being blurred by contested facts. The grounds on res judicata, statutory contravention and laches all required ascertainment of facts by evidence, and the Defendants did not demonstrate sameness of parties and issues or a prior adjudication on the merits. The preliminary objection was therefore dismissed with costs to the Plaintiff.

Key legal issues

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01

Whether res judicata and other fact-dependent grounds can sustain a preliminary objection

Holding

They cannot; a preliminary objection must be a pure point of law.

Reasoning

Relying on Mukisa Biscuit, Nitin Properties, Hassan Ali Joho and Oraro v Mbaja, the court held that the grounds raised (res judicata, contravention of statutory provisions, laches) depend on facts to be proved by evidence, so they do not qualify as preliminary objections. The applicant also failed to demonstrate sameness of parties and issues or a decision on the merits in the prior High Court suit.

p. 3

Legal principles established

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  • Res judicata cannot be raised by way of preliminary objection where facts require proof

Court orders

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  1. 1.Defendants' Notice of Preliminary Objection dated 28th July, 2025 dismissed with costs

Authorities

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Legislation

  • Land ActSection 26
  • Law of Succession ActSection 29
  • Law of Succession ActSection 31
  • Law of Succession ActSection 34
  • Law of Succession ActSection 45
  • Land Registration ActSection 26 (as submitted by counsel)

Cases cited (13)

  • Mukisa Biscuit Manufacturing Co Ltd v West End
    (1969) EA 696
  • Tarabana Company Limited v Sehmi & 7 others
    Civil Appeal 463 of 2019 (KECA 76 (KLR))
  • In the Estate of Gideon Manthi Nzioka (Deceased)
    [2015] KEHC 944 (KLR)
  • Benjoh Amalgamated Limited & Another v Kenya Commercial Bank Limited
    (2014) eKLR
  • Giella v Cassman Brown
  • Mugo v Equity Bank Limited
    Civil Appeal No E062 of 2023 eKLR
  • In the matter of the Estate of Godana Songoro Guyo (Deceased)
    (2020) eKLR
  • Owners of Motor Vessel "Lilians" v Caltex Oil Kenya Limited
    (1989)
  • Dickson Ngigi v Commissioner of Lands & Another
    Petition No 9 of 2019
  • Nitin Properties Ltd v Singh Kalsi & another
    [1995] eKLR
  • Hassan Ali Joho & another v Suleiman Said Shabal & 2 Others
    SCK Petition No. 10 of 2013 [2014] eKLR
  • George Kamau Kimani & 4 others v County Government of Trans-Nzoia & another
    [2014] eKLR
  • Oraro v Mbaja
    2005 1 KLR 141
Jurisdiction invoked
Original civil jurisdiction (ELC); no specific constitutional/statutory provision stated

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, "Makwana v Shariff & 2 others (Environment and Land Case E073 of 2025) [2026] KEELC 1912 (KLR)", Case Analysis (2026). Not stated in the judgment ( suit pending; ruling on Defendant's Notice of Preliminary Objection dated 28th July, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1912/eng@2026-03-04

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