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ELCStruck OutNot stated in judgment (ELC suit; preliminary objection dated 10th March 2014)· [2017] KEELC 286 (KLR)

Robert Muli Matolo v Attorney General & 3 others [2017] KEELC 286 (KLR)

Environment and Land Court
29 November 2017
CMC.G. MBOGO
936 words in judgment
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The bottom line

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A Kenyan land court struck out a Makueni land suit because it had already been decided in an earlier case between the same parties over the same land.

What this practically means

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Executive summary

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The 2nd and 3rd defendants filed a notice of preliminary objection dated 10th March 2014 seeking dismissal of the plaintiff's suit concerning land parcel Makueni/Kivani/1000 and the Estate of Moki Matolo. The objection raised eight grounds: lack of locus standi for want of letters of administration over the estates of Isika, Wallace and Kivanga Matolo; limitation, the cause of action arising in 1976; res judicata by reason of HCC No. 599 of 2013 decided on 21/2/2014; want of consent of the Land Adjudication Officer under section 30 of the Land Adjudication Act; abuse of process by a busy body; and that all issues had been exhaustively dealt with in the 1976 land adjudication process. Directions were given on 19th March 2015 for the objection to be canvassed by written submissions. The defendants ultimately did not file submissions; the plaintiff filed on 3rd October 2017, relying on Mukisa Biscuits to argue the objection raised no points of law, and defending his locus standi via letters of administration issued on 29th July 2008, and contending that the pending ministerial appeal meant the matter was not time barred and that ELC 599/2013 involved different parties and issues. The court read the ruling in Nairobi ELC No. 599 of 2013 (Robert Muli Matolo v Director of Land Adjudication & 2 others) and held the suit res judicata on the same subject matter, parties and issues. On that ground alone, without considering the other grounds, it struck out the suit with costs to the 2nd and 3rd defendants.

Key legal issues

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01

Res judicata

Holding

The suit is res judicata by virtue of the ruling in ELC No. 599 of 2013 (Robert Muli Matolo v Director of Land Adjudication & 2 others)

Reasoning

The court compared the present suit with the decided ELC No. 599 of 2013 and found identical subject matter, parties and issues. It declined to consider the remaining grounds of the preliminary objection, holding the res judicata ground sufficient on its own to dispose of the suit. The objection therefore succeeded without the court determining locus standi, limitation, or the section 30 consent issue.

p. 2
02

Preliminary objection on points of law (Mukisa Biscuits test)

Holding

The court entertained the preliminary objection and upheld it on a pure point of law (res judicata), notwithstanding the plaintiff's reliance on Mukisa Biscuits to argue the objection raised no points of law

Reasoning

The plaintiff's counsel cited Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors to argue the objection did not raise points of law. The court did not expressly rule on that submission but proceeded to determine the objection on the res judicata ground, which is a point of law, and struck out the suit without delving into the facts or the other grounds.

p. 2

Legal principles established

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  • A suit on the same subject matter, same parties and same issues as a previously decided suit is res judicata and may be struck out on a preliminary objection without considering the other grounds raised

Court orders

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  1. 1.The plaintiff's suit is struck out on the ground of res judicata
  2. 2.Costs of the suit awarded to the second and third defendants

Authorities

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Legislation

  • Land Adjudication Actsection 30

Cases cited (2)

  • Mukisa Biscuits Manufacturing Co. Ltd Vs West End Distributors
    [1969] BA 696
  • Robert Muli Matolo Vs Director of Land Adjudication and 2 others (Nairobi ELC no. 599 of 2013)
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit; preliminary objection under the doctrine in Mukisa Biscuits; section 30 of the Land Adjudication Act raised as a jurisdictional bar

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, "Robert Muli Matolo v Attorney General & 3 others [2017] KEELC 286 (KLR)", Case Analysis (2017). Not stated in judgment (ELC suit; preliminary objection dated 10th March 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/286/eng@2017-11-29

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