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ELCDismissedPetition (subject matter); Preliminary Objection dated 16th December 2015· [2016] KEELC 1289 (KLR)

Benedict Kabugi Ndungu & another v Benedict Kabugi Ndungu & another [2016] KEELC 1289 (KLR)

High Court of Kenya
28 October 2016
1,336 words in judgment
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The bottom line

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The High Court dismissed a landowner's attempt to block a constitutional petition, confirming judicial review cases don't bar later suits and anyone can sue under Article 258.

What this practically means

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Executive summary

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The court delivered a ruling on the 2nd Respondent's preliminary objection dated 16th December 2015 in a petition, which raised four grounds: res judicata by virtue of Judicial Review Miscellaneous Application No. 808 of 2008; pendency of an aspect of the case in Court of Appeal Civil Appeal No. 129 of 2013; lack of locus standi by the Petitioners to raise a public action over private property; and inability of the Petitioners to claim any interest in private land registered to a private entity. The court set out the classic definition of a preliminary objection from Mukisa Biscuit and Oraro, emphasizing it must be a pure point of law not dependent on disputed facts. On res judicata, applying Section 7 of the Civil Procedure Act and Welamondi, the court held that judicial review proceedings are sui generis, so a prior judicial review matter cannot render the petition res judicata. On the pending appeal, the court found no stay had been issued by the Court of Appeal and the suit should proceed. On locus standi, the court relied on Article 258 of the Constitution, which permits any person to institute proceedings claiming constitutional contravention, including in the public interest, and held that whether the suit property is private or public is the main issue for trial and cannot be resolved as a preliminary point. The preliminary objection was dismissed in its entirety, with costs in the cause.

Key legal issues

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01

Res judicata

Holding

The suit is not res judicata because the cited prior matter was judicial review, a sui generis jurisdiction distinct from the civil jurisdiction invoked here

Reasoning

Section 7 of the Civil Procedure Act requires that the matter directly and substantially in issue in a former suit between the same parties was heard and finally decided. Relying on Welamondi, the court held that judicial review under Order 53 is neither civil nor criminal jurisdiction but sui generis, so a prior judicial review application cannot bar a constitutional petition.

p. 3
02

Sub judice / pending appeal

Holding

The pendency of Civil Appeal No. 129 of 2013 does not bar the suit absent a stay order from the Court of Appeal

Reasoning

Even assuming the appeal concerns the same subject matter, no stay of these proceedings has been issued by the Court of Appeal. Without such an order it cannot be urged that the suit should not proceed; the court found the suit should proceed to hearing and determination.

p. 3
03

Locus standi and the nature of the suit property

Holding

Locus standi is conferred by Article 258, and whether the property is private or public is the substantive issue in the suit, not a fit preliminary point

Reasoning

Article 258 allows any person to institute proceedings claiming constitutional contravention, including acting in the public interest. The characterization of the suit property as private or public is the very matter for trial; the 2nd Respondent cannot authoritatively assert private ownership before the suit is determined.

p. 3

Legal principles established

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  • Judicial review proceedings are sui generis, neither civil nor criminal, and a prior judicial review matter cannot found a plea of res judicata in a subsequent civil suit
  • A preliminary objection must be a pure point of law and cannot rest on disputed facts requiring evidence
  • Every person has the right to institute constitutional proceedings, including in the public interest, under Article 258

Court orders

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  1. 1.The 2nd Respondent's Preliminary Objection dated 16th December 2015 is dismissed
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure RulesOrder 53
  • Constitution of Kenya, 2010Article 258(1) and (2)

Cases cited (3)

  • Mukisa Biscuit Manufacturing Co. Ltd -vs.- West End Distributors Ltd
    (1969) E.A. 696
  • George Oraro -vs.- Barak Mbaja
    [2005] 1 KLR 141
  • Welamondi versus The Chairman, Electoral Commission of Kenya
    (2002) 1 KLR 486
Jurisdiction invoked
Article 258 of the Constitution of Kenya, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Benedict Kabugi Ndungu & another v Benedict Kabugi Ndungu & another [2016] KEELC 1289 (KLR)", Case Analysis (2016). Petition (subject matter); Preliminary Objection dated 16th December 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1289/eng@2016-10-28

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