Uyoga v Ali & another (Environment and Land Case E222 of 2025) [2026] KEELC 2032 (KLR)

4. On his part, the Plaintifi submitted that the Preliminary Objection does not meet the legal threshold of a true preliminary objection, as the issues of res judicata and sub judice require ascertainment of facts and interrogation of evidence. Reliance was placed on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors [1969] EA 696, Oraro v Mbaja [2005] 1 KLR 141, and Henry Wanyama Khaemba v Standard Chartered Bank Ltd & Another [2014] eKLR, with counsel urging the Court to dismiss the Preliminary Objection with costs. Issue for Determination 5. Having considered the Notice of Preliminary Objection and the rival written submissions by the parties, the Court is of the view that the sole issue for determination is whether the Notice of Preliminary Objection dated 9th July 2025 meets the threshold of a true preliminary objection and, if so, whether it divests this Court of jurisdiction on account of the doctrines of res judicata and sub judice. Analysis and Determination 6. The Court has also carefully considered the pleadings of the parties together with the submissions on record and now renders itself as follows:- 7. The guiding law on the issue of res judicata is Section 7 of the Civil Procedure Act which provides as follows: “No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court”. 8. A Preliminary Objection was described in the Mukisa Biscuits Manufacturing Co. Ltd…Vs…West End Distributors Ltd (1969) EA 696 to mean:-“So far as I am aware, a Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration”. 9. Further Sir Charles Nebbold, JA stated that:- “A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of Preliminary Objection does not nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop”. 10. This Court having made a finding on the description of a Preliminary Objection, it is not in doubt that a Preliminary Objection raises pure point of law, which is argued on the assumption that all facts pleaded by the other side are correct. However it cannot be raised if any facts has to be ascertained from elsewhere or the court is called upon to exercise judicial discretion. 11. Further, in the case of Quick Enterprises Ltd -Vs- Kenya Railways Corporation, Kisumu HCCC No.22 of 1999, the Court held that:“When preliminary points are raised, they should be capable of disposing the matter preliminarily without the Court having to result to ascertaining the facts from elsewhere apart from looking at the pleadings.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2032/eng@2026-02-12 2

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12. It is this Court’s opinion that in determining a Preliminary Objection, the Court will also take into account that the Preliminary Objection must stem from the pleadings and raise pure point of law. See the case of Avtar Singh Bhamra & Another -Vs- Oriental Commercial Bank, Kisumu HCCC No.53 of 2004, where the court held that: “A Preliminary Objection must stem or germinate from the pleadings filed by the parties and must be based on pure points of law with no facts to be ascertained.” 13. Before the Court embarks on determining the merit of the Notice of Preliminary Objection, it has to first determine whether what has been raised herein satisfy the ingredients of a Preliminary Objection. As the Court determines whether what the 1st Respondent has filed amounts to a Preliminary Objection or not, the Court will also be persuaded by the findings in the case of Oraro -Vs- Mbaja (2005) 1KLR 141, where the Court held that:“Anything that purports to be a Preliminary Objection must not deal with disputed facts and it must not derive its foundation from factual information which stands to be tested by rules of evidence”. 14. In the instant Preliminary Objection, the 2nd Defendant contends that the present suit and the application dated 5th April 2025 are res judicata and sub judice, on the basis that similar issues were previously litigated in Milimani Chief Magistrate’s Court Civil Case No. E2062 of 2023 and in ELC Appeal No. E09 of 2023. It is argued that the matters were heard and determined, and that the Plaintifi is engaging in forum shopping and abusing the court process. 15. On the other hand, the Plaintifi disputes this position and maintains that the Preliminary Objection as framed does not raise pure points of law, but instead invites the Court to interrogate contested facts, compare pleadings, examine proceedings and rulings from previous suits, and ascertain whether the parties, issues, and reliefs are identical. 16. This Court has carefully considered the pleadings on record and notes that in order to determine whether the doctrines of res judicata and sub judice apply, the Court would be required to examine the pleadings, applications, rulings, and orders issued in the alleged previous suits and appeal. Such an exercise would inevitably involve ascertainment of facts beyond the face of the pleadings presently before this Court. 17. The determination of whether the parties herein are litigating under the same title, whether the issues are directly and substantially the same, and whether the matters were finally determined by a competent court, cannot be resolved without probing evidence and comparing records from the earlier proceedings. This clearly takes the matter outside the scope of a true Preliminary Objection as envisaged in Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd (supra). 18. Guided by the principles set out in Oraro v Mbaja (supra), Quick Enterprises Ltd v Kenya Railways Corporation (supra), and Avtar Singh Bhamra & Another v Oriental Commercial Bank (supra), this Court finds that the issues raised in the Preliminary Objection are not plain, obvious, or uncontested points of law capable of disposing of the suit without recourse to evidence. 19. Consequently, this Court finds that the Notice of Preliminary Objection dated 9th July 2025 does not meet the legal threshold of a Preliminary Objection, as it is founded on matters that require judicial inquiry and evaluation of facts, which can only properly be undertaken at the substantive hearing or through a formal application supported by evidence. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2032/eng@2026-02-12 3

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20. In the premises, the Court finds that the Notice of Preliminary Objection dated 9th July 2025 lacks merit. 21. The said Preliminary Objection is hereby dismissed with costs to the Plaintifi. It is so ordered! DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON 12TH DAY OF FEBRUARY, 2026. MOHAMMED N. KULLOW JUDGE Ruling delivered in the presence of: Mr. Imbungwa for the Plaintifi/Applicant Mr. Wanda for 2nd Respondent N/A for 1st Respondent Philomena W. Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2032/eng@2026-02-12 4

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