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ELCDismissedELCLC E001/2024

Omware v Ndeti (Sued as the Administrator of the Estate of Albert Athanas Makau Kyambo (Deceased)) & another (Environment and Land Case E001 of 2024) [2026] KEELC 4715 (KLR)

Environment and Land Court
16 July 2026
2,407 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The 1st Defendant filed a Notice of Preliminary Objection dated 8th June 2026 seeking to strike out the Plaintiff's suit as res judicata by virtue of the judgment in Machakos ELC (OS) No. 46 of 2019 and the Court of Appeal decision in Hanningtone Oloo Ogumbo v Albert Makau Kyambo & Another. The Plaintiff, the 2nd Defendant and the Interested Party opposed, denying that they were parties to or claimed under parties to the former suit, disputing identity of causes of action, issues and properties, and submitting that the requirements of section 7 of the Civil Procedure Act were unestablished. The court, per J. N. Kuyioni J, framed a single substantive issue: whether the suit was barred by res judicata under section 7. Before reaching that question, the court applied Mukisa Biscuit, Aviation & Allied Workers Union and John Florence Maritime Services, holding that a preliminary objection must raise a pure point of law on admitted facts. Because party identity, issues and causes of action were contested, and because the pleadings, proceedings and judgment in the former Machakos suit were not placed before the Court, the comparative inquiry required by section 7 and Muiri Coffee Estate could not be undertaken. Following Koit Developers and Nyanyuki v Openda, the court held the objection incompetent and dismissed it. Costs were made costs in the cause and the suit was directed to proceed to hearing on its merits.

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 8th June 2026 satisfies the legal threshold of a proper preliminary objection
  2. 2.Whether the Plaintiff's suit is barred by the doctrine of res judicata under section 7 of the Civil Procedure Act

Key legal issues

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01

Whether the preliminary objection raised a pure point of law

Holding

It did not; determining res judicata would require ascertaining contested facts and examining the record of the former suit, so the objection was incompetent

Reasoning

Applying Mukisa Biscuit and Aviation & Allied Workers Union, the court held that a preliminary objection must be arguable on the assumption that all pleaded facts are correct. Here, party identity, causes of action and subject matter were all disputed, and the pleadings and judgment in Machakos ELC (OS) No. 46 of 2019 were not placed before the Court, preventing the comparative inquiry section 7 demands.

p. 13
02

Whether the suit is res judicata under section 7 of the Civil Procedure Act

Holding

The plea could not be established on the material before the Court; the statutory requirements were not demonstrated

Reasoning

Section 7 requires identity of parties, matters in issue, title and a final determination by a competent court. The Plaintiff, 2nd Defendant and Interested Party all denied being party to or claiming under parties to the former Machakos suit. Without the pleadings, proceedings and judgment of the former suit, the required comparison could not be undertaken.

p. 10

Legal principles established

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  • A plea of res judicata can be determined as a preliminary objection only where the requirements of section 7 of the Civil Procedure Act are evident from admitted or undisputed facts; where the court must examine and compare pleadings, proceedings or judgments, it ceases to be a pure point of law
  • The party raising the plea of res judicata bears the burden of establishing the conjunctive statutory requirements, including identity of parties, issues and title, and a final determination by a competent court

Court orders

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  1. 1.The 1st Defendant's Notice of Preliminary Objection dated 8th June 2026 is hereby dismissed
  2. 2.The costs of the Preliminary Objection shall be in the cause
  3. 3.The suit shall proceed for hearing on its merits

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 (the record does not cite a specific provision)

Relief refused

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Strike out the Plaintiff's suit as res judicata

The objection did not raise a pure point of law; the record of the former suit was not before the Court, making the comparative inquiry required by section 7 impossible

p. 13

Costs

The costs of the Preliminary Objection shall be in the cause.

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.

a) The 1st Defendant's Notice of Preliminary Objection dated 8th June 2026 is hereby dismissed. b) The costs of the Preliminary Objection shall be in the cause. c) The suit shall proceed for hearing on its merits.
p. 13Final orders dismissing the preliminary objection
A plea of res judicata is capable of determination as a preliminary objection only where the requirements of section 7 of the Civil Procedure Act are evident from facts that are admitted or otherwise beyond controversy.
p. 9Res judicata as a preliminary objection
Where, as here, the plea is advanced through a Notice of Preliminary Objection unsupported by the record of the former proceedings, the Court cannot undertake the comparative inquiry required by law.
p. 12Evidential burden on the party pleading res judicata

Issues in the judgment

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minor

The Notice of Preliminary Objection is dated 8th June 2026 while the case number is ELCLC E001/2024, an apparent date discrepancy within the judgment

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, "Omware v Ndeti (Sued as the Administrator of the Estate of Albert Athanas Makau Kyambo (Deceased)) & another (Environment and Land Case E001 of 2024) [2026] KEELC 4715 (KLR)", Case Analysis (2026). ELCLC E001/2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4715/eng@2026-07-16

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