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ELCDismissedNot stated in the judgment excerpt· [2014] KEELC 104 (KLR)

George Kamau Kimani & 4 others v County Government of Trans-Nzoia & another [2014] KEELC 104 (KLR)

Environment and Land Court
29 October 2014
EOE. Obaga
604 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court in Kitale confirmed you cannot kill a land suit with a preliminary objection when your argument needs evidence to be tested.

What this practically means

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Executive summary

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The first defendant, through Professor Sifuna, took a preliminary objection in the Environment and Land Court at Kitale arguing that the plaintiffs' suit was res judicata because the plaintiffs' former advocate had conceded in Environment and Land Case No. 66 of 2013 that the leases were neither registered nor sealed, a point said to have already been ruled on by the court. The first defendant further contended that the leases signed by the plaintiffs and the second defendant were unenforceable for want of registration and sealing. Mr Nyamu for the plaintiffs and counsel for the second defendant opposed the objection, arguing that the points raised were not pure points of law capable of determination as preliminary objections, and relied on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors [1969] EA 696. Relying on Sir Charles Newbold P's definition in that case, E. Obaga J held that a preliminary objection must raise a pure point of law on assumed pleaded facts; res judicata should be raised by notice of motion with the prior pleadings and decision annexed, and the remaining points required ascertainment of facts by evidence. The first defendant had annexed only a ruling in a case that was struck out, which the court held was not a proper way of raising res judicata. The preliminary objection was found to lack merit and was dismissed with costs to the plaintiffs and the second defendant.

Key legal issues

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01

Whether res judicata and enforceability of unregistered leases can be raised by way of preliminary objection

Holding

The preliminary objection fails; the points raised require ascertainment of facts or argument in the normal manner and are improperly raised as a preliminary objection.

Reasoning

The court adopted the classic definition in Mukisa Biscuit: a preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct. Res judicata requires comparison of pleadings and decisions, and enforceability of the leases requires evidence; neither is a pure point of law. The first defendant also failed to annex the prior decision properly, having annexed only a ruling in a case that was struck out.

p. 1

Legal principles established

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  • A ground of res judicata, which requires ascertainment of facts, cannot be raised by way of preliminary objection; it should be raised by notice of motion with pleadings annexed.

Court orders

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  1. 1.The preliminary objection by the first defendant is dismissed with costs to the plaintiffs and the second defendant
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court (specific provision not stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "George Kamau Kimani & 4 others v County Government of Trans-Nzoia & another [2014] KEELC 104 (KLR)", Case Analysis (2014). Not stated in the judgment excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/104/eng@2014-10-29

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