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ELCDismissedELCLC Case No. E025 of 2026

Jemutai & 4 others v Bittok & 2 others (Environment and Land Case E025 of 2026) [2026] KEELC 4258 (KLR)

Environment and Land Court
9 July 2026
1,533 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling of the Environment and Land Court at Eldoret on a Notice of Preliminary Objection dated 17th March, 2026 raised by the defendant Hosea Bittok against a suit by the plaintiffs, who are the children of Kimutai Lelei, the plaintiff in Eldoret ELC Case No. 414 of 2012. The objection, canvassed by written submissions, contended that the plaintiffs lack locus standi over L.R. No. 1(EATEC)/113 (Pioneer/Ngeria Block), that they claim hereditary rights while their father is alive, and that the suit is res judicata given the prior suit in which judgment was delivered on 31st July, 2019. The court framed three issues: whether the objection met the threshold of a preliminary objection, whether it was merited, and costs. Relying on Mukhisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd and the Supreme Court's Aviation & Allied Workers Union decision, the court held that a preliminary objection must raise a pure point of law on uncontested facts. Since the objection was anchored on res judicata under section 7 of the Civil Procedure Act, whose elements were heavily contested and required examination of evidence, the court held that res judicata cannot be raised as a preliminary objection, citing George Kamau Kimani and Oraro v Mbaja. The objection was found unmerited and dismissed with costs to the plaintiffs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Notice of Preliminary Objection dated 17th March, 2026 meets the threshold of what amounts to a Preliminary Objection.
  2. 2.Whether the Preliminary Objection is merited.
  3. 3.Who should bear the costs of the preliminary objection.

Key legal issues

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01

Whether the preliminary objection met the Mukhisa Biscuit threshold of a pure point of law

Holding

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.

Reasoning

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.

p. 7
02

Whether the preliminary objection was merited

Holding

Not merited, having failed to qualify as a proper preliminary objection.

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.The Notice of Preliminary Objection dated 17th March, 2026 is not merited and is dismissed with costs to the plaintiffs.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; judgment does not state a specific provision

Relief refused

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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

p. 7

Costs

Preliminary objection dismissed with costs to the plaintiffs.

Quotable passages

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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.
p. 7Final orders - dismissal of preliminary objection with costs
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.
p. 7Res judicata not suitable for determination as a preliminary objection
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.
p. 4Threshold for a preliminary objection
It is a well settled principle that costs follow the event unless the court, for good reason directs otherwise.
p. 7Costs

Issues in the judgment

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minor

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

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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, "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.