Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedHCCC No. ... of 2009 (consolidated with HCCC No. 89 of 2009 (OS))· [2015] KEELC 97 (KLR)

Abdul Muthee Mulama & another v Eglyne Chepchirchir Choge & 3 others [2015] KEELC 97 (KLR)

High Court of Kenya
19 October 2015
EOE. OBAGA
959 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

A case thrown out for technical mistakes doesn't block a fresh lawsuit in Kenya — res judicata only applies where a case was truly heard and decided on its merits.

What this practically means

#

Executive summary

#
This is a High Court ruling at Kitale on a preliminary objection dated 22 June 2015 in which the defendant contended that the plaintiffs' suit was res judicata, having regard to the earlier suit Kakamega HCCC No. 4357 of 1988 between the same parties, which was struck out by the Court of Appeal. The court first observed that frequent changes of advocates - nine for the plaintiffs and three for the defendant - had affected the case and led to the objection being raised afresh. The record showed that the defendant had already raised an identical objection by an application dated 11 May 2009 before Justice Chitembwe; although the typewritten ruling was missing from the file, the fact that the parties continued to prepare the case, amended pleadings and consolidated the suit with HCCC No. 89 of 2009 (OS) indicated the objection had been rejected. The court therefore held the second preliminary objection was itself res judicata and an abuse of process. On the merits, the court noted the Court of Appeal had struck out the 1988 suit solely on procedural grounds - the adverse possession claim was brought by plaint rather than originating summons, no certified extract of title was annexed, representative-suit requirements were unmet and no reasonable cause of action was disclosed. Since the earlier suit was not heard and determined on the merits, the doctrine of res judicata was not attracted. The preliminary objection was dismissed with costs to the plaintiffs.

Key legal issues

#
01

Whether the suit is res judicata

Holding

The preliminary objection fails because the earlier suit (Kakamega HCCC No. 4357 of 1988) was struck out on procedural grounds and never determined on the merits

Reasoning

The Court of Appeal had struck out the 1988 suit because the adverse possession claim was brought by plaint instead of originating summons, the certified extract of title was not annexed, the representative-suit requirements were unmet, and no reasonable cause of action was disclosed. Since none of these constituted a hearing and determination on the merits, the elements of res judicata were absent.

p. 2
02

Whether the preliminary objection is an abuse of process

Holding

Yes - the identical objection was raised in the application dated 11/5/2009 and, though the ruling is not on file, the record shows the suit proceeded, so the objection was effectively rejected

Reasoning

The court noted the parties continued preparing the case and later consolidated it with HCCC No. 89 of 2009 (OS), which would not have happened had the earlier objection succeeded. Change of advocates did not justify a second bite at the same objection; the earlier decision by Justice Chitembwe barred it.

p. 2

Legal principles established

#
  • A suit struck out on procedural technicalities, not on the merits, cannot found a plea of res judicata because it was not fully heard and determined
  • Raising a preliminary objection that has already been raised and decided in the same suit is res judicata so to speak and an abuse of the process of court

Court orders

#
  1. 1.The defendant's preliminary objection dated 22/6/2015 is dismissed with costs to the plaintiffs

Authorities

#

Legislation

  • Civil Procedure RulesOrder 6 Rule 13 1(a) (as then applicable)

Cases cited (2)

  • Kakamega HCCC No. 4357 of 1988 (Sirikwa Mumbai Multipurpose Co-operative Society v Simon Kiptum Arap Choge)
  • Appeal from Akiwumi J's ruling (Court of Appeal)
Jurisdiction invoked
Original civil jurisdiction of the High Court (Civil Procedure Act and Rules)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Abdul Muthee Mulama & another v Eglyne Chepchirchir Choge & 3 others [2015] KEELC 97 (KLR)", Case Analysis (2015). HCCC No. ... of 2009 (consolidated with HCCC No. 89 of 2009 (OS)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/97/eng@2015-10-19

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