Jemutai & 4 others v Bittok & 2 others (Environment and Land Case E025 of 2026) [2026] KEELC 4258 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that res judicata claims need evidence, so they cannot be raised as preliminary objections to dismiss a case early.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Notice of Preliminary Objection dated 17th March, 2026 meets the threshold of what amounts to a Preliminary Objection.
- 2.Whether the Preliminary Objection is merited.
- 3.Who should bear the costs of the preliminary objection.
Key legal issues
#Whether the preliminary objection met the Mukhisa Biscuit threshold of a pure point of law
It did not; the objection was mainly anchored on res judicata which requires the court to examine evidence and ascertain the elements to be proved, so it could not be sustained.
The court applied Mukhisa Biscuit and Aviation & Allied Workers Union: a preliminary objection must raise a pure point of law on uncontested facts. The objection here rested on res judicata under section 7 of the Civil Procedure Act, whose elements (identity of parties, subject matter and relief) were heavily contested, requiring evidence and examination of the prior suit ELC No. 414 of 2012. Citing Oraro v Mbaja and George Kamau Kimani, the court held such issues are best raised by Notice of Motion.
Whether the preliminary objection was merited
Not merited, having failed to qualify as a proper preliminary objection.
Having found that the objection did not meet the criteria of a proper preliminary objection under the Mukhisa Biscuit test, the court held it logically followed that the objection was unmerited and fell to be dismissed.
Legal principles established
#- A preliminary objection can only be raised on a pure point of law argued on the assumption that there is no contest as to the facts.
- Res judicata is not a proper ground for a preliminary objection where facts must be ascertained; it is best raised by Notice of Motion with pleadings annexed.
Court orders
#- 1.The Notice of Preliminary Objection dated 17th March, 2026 is not merited and is dismissed with costs to the plaintiffs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court; judgment does not state a specific provision
Relief refused
#Preliminary Objection dated 17th March 2026
It did not meet the threshold of a preliminary objection as it was anchored on res judicata, an issue requiring ascertainment of contested facts
Costs
Preliminary objection dismissed with costs to the plaintiffs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the upshot, I accordingly find that the Notice of Preliminary Objection dated 17th March, 2026 is not merited and is hereby dismissed with costs to the plaintiffs.
It is my considered opinion that an issue of res judicata is incapable of being considered as a preliminary objection in the sense of the law and the present preliminary objection cannot therefore be sustained.
a Preliminary Objection can only be raised on a pure point of law, which is argued on the assumption that there is no contest as to the facts.
It is a well settled principle that costs follow the event unless the court, for good reason directs otherwise.
Issues in the judgment
#The judgment begins mid-ruling; the first ground of the preliminary objection is cut off, with only grounds 3 and 4 reproduced, and the coram listing references 1st & 2nd Interested parties who are not otherwise described.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jemutai & 4 others v Bittok & 2 others (Environment and Land Case E025 of 2026) [2026] KEELC 4258 (KLR)", Case Analysis (2026). ELCLC Case No. E025 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4258/eng@2026-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.