Ndembi v Ndembi & another (Land Case E012 of 2014) [2025] KEELC 8661 (KLR)

c. The filing of the current matter constitutes an abuse of the Court process and is in direct violation of the legal doctrine of finality in litigation which demands that litigation must come to an end. d. The court is functus oficio. e. That the Plaintifi’s recourse, if any, lies in an appeal or review under the applicable procedural laws and not by way of fresh pleadings or disguised re-litigation of the same issue. f. The jurisdiction of the court under Article 162 (2), (b) of the Constitution of Kenya 2010 and section 13 of the Environment and Land Court Act does not include and /or extend to probate and family matters. g. By entertaining this suit, the court is arrogating itself jurisdiction thus ofiending section 13 of the Environment and Land Court Act as held in the case of Samuel Kamau Macharia vs Kenya Commercial Bank Ltd & 2 others Civil Application No. 2 of 2022 where it was held that a court’s jurisdiction fiows from either the Constitution or legislation or both. h. The Plaintifis application and suit are therefore frivolous, vexatious, incompetent, fatally defective, bad in law, incurable by amendment and ought to be struck out in toto with costs and all orders issued be set aside. 3. Vide directions given on 9/7/2025, the Preliminary Objection was heard by way of written submissions. On behalf of the Defendant, it was submitted that there was a former suit vide which the Plaintifi brought a claim involving land parcel No. East Bunyore/Ebuchitwa/2491 which claim was dismissed on merit. That the Defendants are successors to the original party in the suit land and that as such they are litigating under the same title. That the issues raised now are identical to those previously raised and adjudicated namely; competing claims to ownership, allegations of unlawful occupation and attempts to evict the Defendants. That the current suit is an attempt to relitigate matters that were conclusively determined and to re-open a cause that has already run its full judicial course. That the court lacks jurisdiction by reason of res-judicata. 4. Counsel submitted further that the court lacks jurisdiction to entertain the present suit in light of its clear overlap with matters that properly fall within the domain of succession and probate law. That the suit concerns not merely land rights but rights claimed through instances arising out of the death of the registered owner and involving disputes over who may legally succeed the estate. That the suit by its nature brings into question the validity of succession, the lawfulness of transmission and the status of the Plaintifi’s alleged beneficial interest. 5. That the Plaintifi’s entire claim arises from an alleged interest in land whose ownership is linked to a deceased person, that the Defendants are named in their capacities as administrators or successors of the estate. That this places the matter outside the jurisdictional competence of the Environment and Land Court. That if the Plaintifi genuinely believes that she has a beneficial interest in the land as a result of familiar ties or inheritance, her proper recourse lies in initiating proceedings in the Family Division under the Law of Succession Act. 6. Counsel prayed that the Preliminary Objection be upheld, the suit and the application be struck out for want of jurisdiction and costs be awarded to the Defendants. 7. On behalf of the Plaintifi written submissions dated 11th August 2025 were filed by the firm of Atemo & Associates Advocates, Counsel submitted that the Preliminary Objection raised by the Defendants did not meet the test of what amounts to a Preliminary as it does not raise pure points of law and the objection of res-judicata cannot be determined without accessing the facts from elsewhere. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8661/eng@2025-12-11 2

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Counsel relied inter alia on the case of Mukisa Biscuits Manufacturing Company Limited vs. West End Distributors (1969) E.A 696 where it was held that a Preliminary Objection taken by the Defendant was not a true Preliminary Objection as evidence is required to prove the issues raised therein. That the issues in the Preliminary Objection in this case do not arise from the pleadings or by a clear implication of the pleadings. 8. Counsel submitted further that the instant issue does not fall within the four pillars of res-judicata as the parties herein are not the same as the one in Vihiga SPMC Civil Suit No. 18 of 2015 and that the prayers sought in the instant suit are not the same for which the Defendants claim to have canvassed in the previous suit. 9. That the Plaintifi has moved the court against the Defendants who have arbitrarily encroached her rightful, legal and beneficial piece of land. 10. That the Preliminary Objection has been premised on an unknown case to wit Vihiga SPMC Civil Suit No. 18 of 2015 which does not form part of the parties’ pleadings. That being the case evidence is required to prove that the issues raised in the instant suit and the former suit are the same. That the Preliminary Objection is therefore not proper, is bad in law, untenable and ought to be dismissed with costs. Counsel submitted that submissions do not amount to evidence unless expressly adopted as such and that the Preliminary Objection was unmerited and should be dismissed. Determination 11. The point of objection on which the Preliminary Objection is based is that the court lacks jurisdiction for the reason that the suit before it is res-judicata and that the claim placed before court falls within the jurisdiction of the succession court and not this court. 12. The threshold for Preliminary Objection was set in the case of Mukisa Biscuit Manufacturing Co. Ltd – vs- West End Distributors Ltd [1969] E.A 696 that a preliminary objection must be based on pure points of law, must arise from the pleadings, may dispose of the suit if argued as a pure point of law and must be argued on the assumption that all facts pleaded by the opposite party are correct; it cannot succeed if any fact has to be ascertained; or if what is sought is the exercise of the court’s discretion. 13. Although the issue of jurisdiction of a court and res-judicata are issues of law, there is no pleadings in the plaint relating to the former suit. 14. In order for the court to determine whether the present suit is res-judicata the Defendants needed to exhibit to the court the pleadings, proceedings and decision in the former suit. This has not been done. As matters are, the court is being invited to go beyond the pleadings so far filed and resort to examining evidence to decide the Preliminary Objection. 15. I find that the grounds of the Preliminary Objection have not been proved. The Preliminary Objection is hereby dismissed. Each party to bear own costs. Orders accordingly. RULING DATED AND SIGNED AT VIHIGA AND DELIVERED VIRTUALLY THIS 11TH DAY OF DECEMBER, 2025. E. ASATI, JUDGE In the Presence of; Patricia- Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8661/eng@2025-12-11 3

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Atemo for the applicant Wanda for the respondents. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8661/eng@2025-12-11 4

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