1. The 1st defendant raised a preliminary objection (PO) in this matter as follows:
a) The suit herein offends section 7 of the Civil Procedure Act.
b) That the suit is an utter abuse of the due process of the law.
c) That the entire suit is therefore fatally defective, incompetent, vexatious, and otherwise a gross abuse of the process of the court, and therefore fit for being struck out with costs.
2. The PO is opposed. The Court directed the parties to file written submissions. I acknowledge receipt of the submissions from counsel for the parties with much appreciation, as they went a long way in assisting the Court in reaching its verdict on the issues raised in the PO.
3. Based on the materials before me, the issues for determination by this court are whether the PO satisfies the principles set out in Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696, whether the suit offends section 7 of the Civil Procedure Act, and costs.
4. A PO rests on the proposition that when raised, its fundamental achievement will have a bearing on disposing of a matter because it raises pure points of law. It also underscores the need for prudent time management as a Court resource by summarily dismissing frivolous and hopeless suits that, if admitted to full trial, will be a waste of judicial time and will not serve the interests of justice. One will not be required to look elsewhere to find an answer as to whether a PO is sustainable or not, but look at the pleadings and discover that the suit is a non-starter - see Ogola J. in DJC v BKL (Civil Suit E021 of 2021) [2022] KEHC 10189 (KLR) (27 June 2022) (Ruling):
“The Supreme Court in Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others cited the leading decision on Preliminary Objections, Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd. (1969) EA 696, where the Court held as follows:
“ 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… a preliminary objection is like 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 has to be ascertained or if what is sought is the exercise of judicial discretion”.
5. In this matter, the 1st defendant contends that the suit property was the subject of a dispute before the Land Disputes Tribunal and the Court, and that an order was issued directing how the said KILIFI/ROKA/189 was to be occupied. The same orders of Hon. Obulutsa were fully implemented, and the said initial title was subsequently subdivided. The land dispute was therefore heard and determined by the Tribunal and the Kilifi Court, and the plaintiff herein never appealed the decision as per the law. Instead, he went quiet and enjoyed peaceful utilization of his 1-acre land. The defendant and his brothers have also utilized the remaining portion as required, have paid for the discharge, and have been issued with title deeds under registration KILIFI/ROKA/4422 and 4421.
6. The 1st defendant asserts that the plaintiff's action in filing a fresh suit herein is an attempt to initiate a new cause of action. In the plaint, the plaintiff states that there were no prior proceedings between the parties herein. The plaintiff concealed the fact that the matter had been litigated and that he was fully satisfied with the result of the lower court, and cannot file a fresh suit on the same subject matter.
7. On the other hand, the plaintiff states that there has been no suit before any court or tribunal involving the same parties herein and similar issues adjudicated over the subject matter, seeking the same prayers as alleged by the 1st defendant.
8. The plaintiff avers that he was formerly allotted the land and that there is a valid letter of offer directing him to pay for the parcel of land, Tezo Roka Settlement Scheme, Plot Number 189, approximately 4.85, which he has paid. The application is annexed with the letter of offer, the receipts, and M-Pesa statements. Therefore, the issue of res judicata is false, since the 2nd and 3rd defendants were not parties to the tribunal case, which, in any event, is obsolete, having not been implemented for over 20 years. The 1st defendant went to the police, and after the matter was filed in court purporting to implement an obsolete decree, almost all the parties involved had passed on.
9. In Kenya, the doctrine of res judicata is governed by Section 7 of the Civil Procedure Act (Cap 21). It bars courts from trying any suit or issue that was directly and substantially in issue in a former suit between the same parties and that has been finally decided by a competent court.
10. To invoke res judicata, it must be shown that: the parties (or those claiming under them) are the same; the cause of action and subject matter are the same; and the former suit was heard and finally decided by a court of competent jurisdiction. In Mwikali & another v Mutungi & 3 others [2026] KECA 231 (KLR), the Court of Appeal reaffirmed that the doctrine "allows a litigant only one bite at the cherry," thereby safeguarding the court's limited resources and promoting stability and predictability in judicial decisions. In Tee Gee Electrics and Plastics Company Ltd v Kenya Industrial Estates Limited [2005] KLR 97, the court held that a suit is barred by res judicata only if it was heard and decided on its substantive merits, not merely dismissed on preliminary technical grounds.
11. In this particular matter, the PO rests on a lawsuit that allegedly was concluded by the defunct Land Disputes Tribunal and adopted as the judgment of the court by the Kilifi Magistrates Court over the same land parcel
12. This decision was not placed before me, nor can I be sure it involved the same parties, nor can I make a finding that it was that 2005 decision that was the basis of implementation leading to the current lawsuit.
13. From the pleadings and under the Mukisa Biscuits test, I cannot determine the PO at once based on the parties' averments and pleadings without delving into other material facts. Consequently, the PO lacks merit and is hereby dismissed with no orders as to costs.
Dated, signed, and delivered electronically in Nyeri on this 14th day of May, 2026
E. K. MAKORI
JUDGE
In the presence of:
Mr. Piemo, the 1st Defendant
Kendi: Court Assistant
In the absence of:
Mr. Mtana for the Plaintiff
a) The suit herein offends section 7 of the Civil Procedure Act.
b) That the suit is an utter abuse of the due process of the law.
c) That the entire suit is therefore fatally defective, incompetent, vexatious, and otherwise a gross abuse of the process of the court, and therefore fit for being struck out with costs.
2. The PO is opposed. The Court directed the parties to file written submissions. I acknowledge receipt of the submissions from counsel for the parties with much appreciation, as they went a long way in assisting the Court in reaching its verdict on the issues raised in the PO.
3. Based on the materials before me, the issues for determination by this court are whether the PO satisfies the principles set out in Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696, whether the suit offends section 7 of the Civil Procedure Act, and costs.
4. A PO rests on the proposition that when raised, its fundamental achievement will have a bearing on disposing of a matter because it raises pure points of law. It also underscores the need for prudent time management as a Court resource by summarily dismissing frivolous and hopeless suits that, if admitted to full trial, will be a waste of judicial time and will not serve the interests of justice. One will not be required to look elsewhere to find an answer as to whether a PO is sustainable or not, but look at the pleadings and discover that the suit is a non-starter - see Ogola J. in DJC v BKL (Civil Suit E021 of 2021) [2022] KEHC 10189 (KLR) (27 June 2022) (Ruling):
“The Supreme Court in Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others cited the leading decision on Preliminary Objections, Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd. (1969) EA 696, where the Court held as follows:
“ 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… a preliminary objection is like 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 has to be ascertained or if what is sought is the exercise of judicial discretion”.
5. In this matter, the 1st defendant contends that the suit property was the subject of a dispute before the Land Disputes Tribunal and the Court, and that an order was issued directing how the said KILIFI/ROKA/189 was to be occupied. The same orders of Hon. Obulutsa were fully implemented, and the said initial title was subsequently subdivided. The land dispute was therefore heard and determined by the Tribunal and the Kilifi Court, and the plaintiff herein never appealed the decision as per the law. Instead, he went quiet and enjoyed peaceful utilization of his 1-acre land. The defendant and his brothers have also utilized the remaining portion as required, have paid for the discharge, and have been issued with title deeds under registration KILIFI/ROKA/4422 and 4421.
6. The 1st defendant asserts that the plaintiff's action in filing a fresh suit herein is an attempt to initiate a new cause of action. In the plaint, the plaintiff states that there were no prior proceedings between the parties herein. The plaintiff concealed the fact that the matter had been litigated and that he was fully satisfied with the result of the lower court, and cannot file a fresh suit on the same subject matter.
7. On the other hand, the plaintiff states that there has been no suit before any court or tribunal involving the same parties herein and similar issues adjudicated over the subject matter, seeking the same prayers as alleged by the 1st defendant.
8. The plaintiff avers that he was formerly allotted the land and that there is a valid letter of offer directing him to pay for the parcel of land, Tezo Roka Settlement Scheme, Plot Number 189, approximately 4.85, which he has paid. The application is annexed with the letter of offer, the receipts, and M-Pesa statements. Therefore, the issue of res judicata is false, since the 2nd and 3rd defendants were not parties to the tribunal case, which, in any event, is obsolete, having not been implemented for over 20 years. The 1st defendant went to the police, and after the matter was filed in court purporting to implement an obsolete decree, almost all the parties involved had passed on.
9. In Kenya, the doctrine of res judicata is governed by Section 7 of the Civil Procedure Act (Cap 21). It bars courts from trying any suit or issue that was directly and substantially in issue in a former suit between the same parties and that has been finally decided by a competent court.
10. To invoke res judicata, it must be shown that: the parties (or those claiming under them) are the same; the cause of action and subject matter are the same; and the former suit was heard and finally decided by a court of competent jurisdiction. In Mwikali & another v Mutungi & 3 others [2026] KECA 231 (KLR), the Court of Appeal reaffirmed that the doctrine "allows a litigant only one bite at the cherry," thereby safeguarding the court's limited resources and promoting stability and predictability in judicial decisions. In Tee Gee Electrics and Plastics Company Ltd v Kenya Industrial Estates Limited [2005] KLR 97, the court held that a suit is barred by res judicata only if it was heard and decided on its substantive merits, not merely dismissed on preliminary technical grounds.
11. In this particular matter, the PO rests on a lawsuit that allegedly was concluded by the defunct Land Disputes Tribunal and adopted as the judgment of the court by the Kilifi Magistrates Court over the same land parcel
12. This decision was not placed before me, nor can I be sure it involved the same parties, nor can I make a finding that it was that 2005 decision that was the basis of implementation leading to the current lawsuit.
13. From the pleadings and under the Mukisa Biscuits test, I cannot determine the PO at once based on the parties' averments and pleadings without delving into other material facts. Consequently, the PO lacks merit and is hereby dismissed with no orders as to costs.
Dated, signed, and delivered electronically in Nyeri on this 14th day of May, 2026
E. K. MAKORI
JUDGE
In the presence of:
Mr. Piemo, the 1st Defendant
Kendi: Court Assistant
In the absence of:
Mr. Mtana for the Plaintiff