King'au v Shaba Trustees Limited & 5 others (Environment and Land Petition E080 of 2025) [2026] KEELC 334 (KLR) (29 January 2026) (Ruling)

King'au v Shaba Trustees Limited & 5 others (Environment and Land Petition E080 of 2025) [2026] KEELC 334 (KLR) (29 January 2026) (Ruling) Neutral citation: [2026] KEELC 334 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Petition E080 of 2025 MN Kullow, J January 29, 2026 Between Rose Njoki King'au Petitioner and Shaba Trustees Limited 1st Respondent Nairobi City County 2nd Respondent Chief Land Registrar 3rd Respondent Hon. Attorney General 4th Respondent Sammy Silas Komen Mwaita 5th Respondent Brian Kiptoo Kiplagat 6th Respondent Ruling Introduction 1.Vide a Petition and a Notice of Motion Application both dated 11th September 2025, the petitioner approached this Court seeking inter alia conservatory orders in relation to suit property LR N0 209/9968(Nairobi/Block 103/3029) as against the 1st, 5th and 6th respondents seeking orders restraining them from dealing with the suit property pending hearing and determination of the application and suit. 2.The 1st, 5th and 6th respondents then filed the notice of preliminary objection dated 17th November 2025 on the following grounds.1.That the Petition is fatally defective, incompetent, and an abuse of the court process as it is res judicata, the issues raised herein having been directly and substantially in issue, heard, and finally determined on merit by courts of competent jurisdiction.2.That this Honourable Court lacks the jurisdiction to entertain, hear, or determine this Petition as doing so would amount to sitting on appeal of final decisions of the High Court and the Court of Appeal, which is a jurisdiction it does not possess.3.That the Petition is a vexatious and scandalous attempt to re-litigate a concluded matter under the guise of a constitutional petition, thereby circumventing the established legal principles of finality in litigation. 3.The Notice of preliminary objection is the subject of this ruling. Parties canvassed the preliminary objection by way of written submissions Applicant’s submissions 4.The applicant submitted that the notice of preliminary objection did not raise a pure point of law as the doctrine of res judicata relied one would cause this court to go into matters of evidence to determine how the decision in High court civil suit No 986 of 2006 was arrived at and whether it was on merit. That this not being a point of law but rather requiring diving into facts, then res judicata failed .Counsel relied on a no of case laws one being the supreme court case of John Florence Maritime Services Limited & Another Vs Cabinet Secretary for Transport and Infrastructure & 3 others (2021) eklr where the court gave the conditions one must meet for the doctrine of res judicata to be invoked one of them being that the matter must have been determine don merit. Counsel also contested the issue raised of lack of jurisdiction indicating the court would have to go into merits of the case ton ascertain whether it has jurisdiction or not.Counsel also summitted that the issue raised in the petition indicated constitutional violations hence matter rightly before this court as a petition Respondents submissions 5.Counsel submitted that in ELC 2002 OF 2007 the court had declared the 1st respondent as the rightful owner of the suit property where the petitioner appealed the said decision and the court in Civil appeal No 230 of 2016 upheld the said ruling. Counsel submitted that the same issue that the petitioner was seeking had been dealt with in ELC 2002 of 2007 being that this petition sought to declare title by the 1st respondent unlawful and cancelled .That the parties being the same in the said suit therefore Res judicata applied meeting the conditions in section 7 of the [civil procedure Act](/akn/ke/act/1924/3) and further placing reliance on the case of supreme court case ,mentioned by the applicants John Florence Maritime Services Limited & Another Vs Cabinet Secretary for Transport and Infrastructure & 3 others (2021) eklr. 6.It was their submission that based on this then the court lacked jurisdiction to entertain the application and entire petition. 7.The respondents further submitted the petition was an abuse of the court process being that applicant sought to give the matter a face lift and relitigate on the same having lost in the High court and court of appeal. Analysis and determination 8.Having considered the Preliminary objections and the submissions herein the issues for determination are Whether the Preliminary objection is merited 9.The threshold of a preliminary objection was set out by the Court of Appeal in the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696 as follows:...a preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary objection may dispose of the suit.” 10.The Court went further to note 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 has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and, on occasion, confuse the issues, and this improper practice should stop. Likewise, the Court in the case Oraro v Mbaja [2005] eKLR 141, on the nature of preliminary objections observed that:“ A preliminary objection is now well identified as and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the process of evidence. Any assertion which claims to be a preliminary objection and yet it bears factual aspects calling for proof or seeks to adduce evidence for its authentication is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed. Where a court needs to investigate facts, a matter cannot be raised as a preliminary objection anything that purports to be a preliminary objection must not deal with disputed facts and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence.” 11.The preliminary objection in this matter is founded on the notion that the petition is res judicata hence the court lacks jurisdiction to entertain the same. It goes without saying that without the requisite jurisdiction a court of law down sits tools meaning that the objection, if successful, is capable of finally disposing the whole matter. The objection, therefore, attains the threshold of a pure preliminary point of law. What then follows for this court’s consideration is whether the objection ought to be sustained. 13.The basis upon which the Respondents have contended that the petition is res judicata is on the basis the ruling in High court civil suit No 986 of 2006 which ruling is on record before this court. It is therefore not disputed that the suit was heard and disposed of vide the ruling rendered 29th April 2010 whereupon the plaintiff’s suit was dismissed and the 1st respondent’s counterclaim allowed. It is also goes without saying that the petitioner dissatisfied proceeded to and lodged an appeal, namely Civil appeal No 230 of 2025, For good measure, the said appeal was heard and dismissed. 14.It is common ground that the issues which were raised in ELC 2002 of 2007(formerly High court civil suit 986 of 2206) touched on and concerned ownership of LR N0 209/9968. In addition, the petitioner sought near similar reliefs/remedies like the ones beforehand that would involve the diving into the title of the suit property. 15.There is no gainsaying that the petitioner has in this petition sought for orders that would definitely go into the issue of proprietorship of the suit title. The prayers sought after will affect the 1st respondent’s title who was declared the bona fide owner of the suit property .The mere fact that the prayers are being drafted in the form of conservatory orders do not take away from the fact they are meant to seek a determination of who is the owner of the suit property as that is the basis of the issuance of the orders to preserve the suit property as the petitioner seeks to have this court relitigate on ownership. This facelift of the payers in the petition and being brought as a petition instead of plaint, in my humble view do not take the dispute outside the purview of res judicata. Final Disposition: 16.Having determined that the issue is res judicata, then the court by dint of that lacks the jurisdiction to entertain the application and petition and downs its tools 17.The upshot of the foregoing is I make the following ordersi.The Notice of Preliminary Objection dated 17th November 2025 is merited and is allowed.ii.The Petition is hereby struck out for being res judicata.iii.The 1st, 5th and 6th Respondents shall have costs.It is so ordered. **DATED , SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 29 TH DAY OF JANUARY 2026. ****MOHAMMED N. KULLOW****JUDGE** Ruling delivered in the presence of: -Mr. Brian for the ApplicantMr. Allan Kamau for 3rd and 4th RespondentsNo appearance for 5th & 6th RespondentsPhilomena W . Court Assistant.