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ELCDismissedKerugoya ELC (SPMCC No. 199 of 2010 referenced; suit filed 18th November 2014)· [2016] KEELC 964 (KLR)

Zipporah Keru Kibia (Suing for and on behalf of the Estate of Eliud Kibia Muthigani (Deceased) v Salesio Gana Njeru & 2 others [2016] KEELC 964 (KLR)

Environment and Land Court
22 April 2016
BOB.N. Olao
1,184 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court ruled that fraud claims about a land auction must be decided at trial, and the case could not be blocked as a repeat lawsuit.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Kerugoya (B.N. Olao J) determined a Preliminary Objection dated 14th April 2015 raised by the 1st defendant in a suit filed on 18th November 2014 on behalf of the Estate of Eliud Kibia Muthigani (deceased). The suit sought declarations that the public auction of plot No. 329 Kagio Market conducted on 28th March 2011 was fraudulent, illegal, null and void, together with cancellation of the transfer to the 1st defendant and his eviction. The 1st defendant objected that the suit was res judicata in view of Kerugoya SPMCC No. 199 of 2010, which had culminated in the sale and transfer, and that the auction could not be challenged in a separate suit. The court restated the classic definitions of a Preliminary Objection from Mukisa Biscuits and Oraro v Mbaja, holding that a proper objection must raise a pure point of law without contested facts. It found that the allegation of fraud in the auction was a matter for evidence at trial and could not be determined preliminarily. On res judicata, applying Section 7 of the Civil Procedure Act and the ingredients in Uhuru Highway Development Ltd v Central Bank of Kenya, the court compared the pleadings and found the parties differed: the former suit was between the 3rd and 2nd defendants only, and neither the plaintiff nor the deceased was party to it, so the fraud issues could not have been decided there. The Preliminary Objection was accordingly dismissed with costs. The main suit proceeds to trial.

Key legal issues

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01

Whether allegations of fraud in a public auction can be determined on a Preliminary Objection

Holding

No - fraud is an issue of fact requiring evidence at trial and cannot be raised as a Preliminary Objection

Reasoning

The court applied the Mukisa Biscuits and Oraro definitions: a Preliminary Objection must be a pure point of law argued on the basis that all facts pleaded by the opposite side are correct. Here the plaintiff pleaded fraud and the 1st defendant pleaded bona fide purchaser status; these are contested factual matters to be determined on evidence at trial, not points of law.

p. 2
02

Whether the suit is res judicata in view of Kerugoya SPMCC No. 199 of 2010

Holding

No - the ingredients of res judicata under Section 7 of the Civil Procedure Act are not satisfied because the plaintiff and the deceased were not parties to the former suit and the issues of fraudulent disposition could not have been raised there

Reasoning

Applying the four ingredients in Uhuru Highway Development Ltd v Central Bank of Kenya, the court compared the pleadings in both suits. Although both concern plot No. 329 Kagio Market, the former suit was between the 3rd defendant and the 2nd defendant only. The deceased registered proprietor, on whose estate the present claim rests, was not a party, so the fraud issues could not have been heard and finally decided in that suit.

p. 3

Legal principles established

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  • A Preliminary Objection must raise a pure point of law and must not depend on matters of fact requiring proof by evidence
  • Res judicata requires that the parties in the former suit be the same or litigating under the same title; a party absent from the former suit cannot sustain the plea

Court orders

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  1. 1.The Preliminary Objection dated 14th April 2015 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSection 7

Cases cited (3)

  • MUKISA BISCUITS COMPANY LTD VS WEST END DISTRIBUTORS
    (1968) E.A 896
  • ORARO VS MBAJA
    2005 1 K.L.R 141
  • UHURU HIGHWAY DEVELOPMENT LTD VS CENTRAL BANK OF KENYA & OTHERS
    Civil Appeal No. 36 of 1996
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; Civil Procedure Act, Section 7 (res judicata) considered on preliminary objection

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, "Zipporah Keru Kibia (Suing for and on behalf of the Estate of Eliud Kibia Muthigani (Deceased) v Salesio Gana Njeru & 2 others [2016] KEELC 964 (KLR)", Case Analysis (2016). Kerugoya ELC (SPMCC No. 199 of 2010 referenced; suit filed 18th November 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/964/eng@2016-04-22

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