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ELCStruck OutKerugoya ELC No. E038 of 2024 (Ruling)· [2026] KEELC 3032 (KLR)

County Government of Kirinyaga v Kibuga & 9 others (Environment and Land Case E038 of 2024) [2026] KEELC 3032 (KLR)

Environment and Land Court
20 May 2026
1,421 words in judgment
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The bottom line

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A Kenyan court struck out the County Government of Kirinyaga's land ownership suit because the same dispute had already been decided in 1991.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kerugoya (S. M. Kibunja, ELC Judge, delivered virtually on 20th May 2026) determines two preliminary objections filed by the 1st to 3rd defendants (dated 4th July 2025) and the 5th, 6th and 8th defendants (dated 24th September 2025) in Kerugoya ELC No. E038 of 2024. Both objections contended that the plaintiff's suit over ownership of land parcel Mwerua/Baricho/292 was res judicata, having been conclusively determined in Embu PMCC No. 320 of 1990, in breach of Section 7 of the Civil Procedure Act. The 1st to 3rd defendants also pleaded limitation, frivolity, vexatiousness and abuse of process but counsel argued only the res judicata ground, which the court treated as an abandonment of the other grounds. The plaintiff filed no submissions despite being granted 14 days, and filed no replies to the statements of defence, leaving the defendants' averments about the previous proceedings unchallenged. The court perused the judgment of 28th May 1991 and ruling of 16th November 2015 in Embu PMCC No. 320 of 1990 and confirmed that the suit property was a subject matter there; that orders were issued that the Kirinyaga County Council, the plaintiff's predecessor, had no right of ownership; and that the previous court's jurisdiction was never questioned nor its decision appealed or reviewed. Applying Mukisa Biscuit Manufacturing Ltd v West End Distributors Ltd (1969) EA 696, the court upheld the objections, held itself without jurisdiction, struck out the plaintiff's suit and awarded costs to the successful defendants under Section 27 of the Civil Procedure Act.

Key legal issues

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01

Whether the suit is res judicata by reason of the judgment in Embu PMCC No. 320 of 1990

Holding

The suit is res judicata; ownership of the suit property was decided in favour of the 1st defendant in the previous suit, and the plaintiff neither rebutted that position nor challenged the previous court's jurisdiction.

Reasoning

The court compared the parties and subject matter of Embu PMCC No. 320 of 1990 with the present suit. Land parcel Mwerua/Baricho/292 was a subject matter in the previous suit, where orders were issued that the Kirinyaga County Council, predecessor of the plaintiff, had no right of ownership. The plaintiff filed no submissions and no replies to the defences, so the averments on the previous proceedings remained unchallenged. No contention was raised that the earlier court lacked jurisdiction or that its decision was reviewed or appealed against.

p. 8
02

Effect of the plaintiff's failure to file submissions or rebut the defences

Holding

The plaintiff's failure to counter the defendants' submissions and averments was taken as admission that the previous suit determined the same issue between the same parties.

Reasoning

The plaintiff, despite being the initiator of the suit, neither filed submissions despite being granted 14 days nor filed replies to the statements of defence. The court therefore accepted the unchallenged averments that the Attorney General was sued on behalf of the County Council of Kirinyaga and that the earlier judgment disposed of the ownership question.

p. 7
03

Scope of the preliminary objections as argued

Holding

Only the res judicata ground was argued; the grounds of limitation and frivolity/vexatiousness were taken as abandoned.

Reasoning

Although the 1st to 3rd defendants raised three grounds, counsel submitted only on res judicata; the court treated the other two grounds as abandoned. The 5th, 6th and 8th defendants' two grounds amounted to one res judicata ground. The court therefore determined only whether the suit contravened Section 7 of the Civil Procedure Act.

p. 4

Legal principles established

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  • Preliminary objections should only raise issues of law which have been pleaded or arise by clear implication out of the pleadings and which, if argued, may dispose of the suit without ascertaining contested facts by evidence.
  • A suit on an issue previously conclusively determined by a court of competent jurisdiction is res judicata under Section 7 of the Civil Procedure Act and must be struck out.
  • Costs follow the event unless the court for good cause orders otherwise.

Court orders

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  1. 1.The preliminary objection dated 4th July 2025 by the 1st to 3rd defendants and that dated the 24th September 2025 by the 5th, 6th & 8th defendants has merit and is upheld.
  2. 2.The plaintiff's suit is therefore struck out with costs.
Jurisdiction invoked
Article 162(2)(b) Constitution (Environment and Land Court); Civil Procedure Act, Chapter 21 (Sections 7 and 27)

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, "County Government of Kirinyaga v Kibuga & 9 others (Environment and Land Case E038 of 2024) [2026] KEELC 3032 (KLR)", Case Analysis (2026). Kerugoya ELC No. E038 of 2024 (Ruling). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3032/eng@2026-05-20

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