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ELCStruck OutEnvironment and Land Court Case No. 279 of 2014· [2017] KEELC 827 (KLR)

Doki Investment Ltd v Silas Kipchillat & 4 others [2017] KEELC 827 (KLR)

Environment and Land Court
24 October 2017
1,650 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner lost its case entirely because it refiled a dismissed land dispute instead of asking the court to reinstate the original suit.

What this practically means

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Executive summary

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The 1st defendant raised a preliminary objection dated 19th July 2017 against the plaintiff's application dated 8th June 2017 in ELC Case No. 279 of 2014, arguing that the suit was res judicata, that the court was functus officio, and that conservatory orders sought had already been granted, varied and vacated in Eldoret HCC No. 207 of 2009, which was heard and dismissed. Counsel for the 1st defendant (Mr. Kibii) and for the 4th and 5th defendants (Mr. Wabwire) submitted that the parties and subject matter, Eldoret Municipality Block 12/353, were identical in both suits and that allowing the plaintiff to litigate the same matter would be an abuse of the court process. Counsel for the plaintiff (Mr. Aseso) opposed the objection, relying on a replying affidavit by Donald Kibera asserting that the earlier suit was filed without the company's instructions, and contending that the objection failed the Mukisa Biscuit threshold because it was accompanied by annexures requiring the court to look outside the pleadings. The court applied the Mukisa Biscuit test, found the objection raised pure points of law, and held that section 7 of the Civil Procedure Act rendered the suit res judicata. The allegation that the previous suit was filed without instructions was unproven, the absence of a company resolution being immaterial as the requirement was introduced by the 2010 Civil Procedure Rules. The preliminary objection was allowed with costs to the defendants and the suit was struck out.

Key legal issues

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01

Res judicata under section 7 of the Civil Procedure Act

Holding

The suit is res judicata as it is between the same parties over the same subject matter as Eldoret HCC No. 207 of 2009, which was dismissed

Reasoning

The court found HCC No. 207 of 2009 was filed by the same plaintiff against the 1st defendant, was heard and dismissed, and the current suit seeks the same orders over the same property, Eldoret Municipality Block 12/353, with additional parties. The plaintiff's remedy was to apply for reinstatement rather than file a fresh suit. Filing a multiplicity of suits abuses the court process.

p. 3
02

Whether the preliminary objection met the Mukisa Biscuit threshold

Holding

It did, as it raised pure points of law without requiring the court to look outside the pleadings

Reasoning

The court applied the Mukisa Biscuit definition, holding that a preliminary objection is based on points of law capable of disposing of a matter at interlocutory stage from the pleadings. The annexures were attached but not marked as exhibits, so the court was not required to ascertain facts outside the pleadings.

p. 3
03

Whether the prior suit was filed without the company's authority

Holding

The allegation was unproven; the burden of proof lay on the party alleging lack of authority or forgery

Reasoning

Relying on section 107 of the Evidence Act, the court held that the plaintiff's bare assertion, through a replying affidavit by Donald Kibera, that the earlier suit was filed without instructions was insufficient. No investigations, criminal proceedings, or complaints to the Law Society of Kenya were shown, and the advocates concerned were not called to disprove the documents.

p. 3
04

Whether absence of a company resolution invalidated the prior suit

Holding

It did not, as the requirement was introduced only by the 2010 Civil Procedure Rules

Reasoning

The court found that the argument that HCC No. 207 of 2009 was defective for lack of a company resolution had no merit because that requirement did not exist under the rules applicable when the suit was filed in 2009; it was introduced by the 2010 Civil Procedure Rules.

p. 3

Legal principles established

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  • A preliminary objection raises pure points of law and cannot be raised if any fact has to be ascertained
  • He who alleges must prove; bare allegations that a prior suit was filed without instructions are insufficient without evidence
  • Litigants may not abuse the court process by filing multiple suits over the same subject matter

Court orders

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  1. 1.The preliminary objection is allowed with costs to the defendants
  2. 2.The suit is struck out

Authorities

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Legislation

  • Civil Procedure Actsection 7
  • Evidence Actsection 107
  • Civil Procedure Rules2010 Rules

Cases cited (1)

  • Mukisa Biscuit Manufacturing Ltd Vs. West End Distributors Ltd
    (1969) EA 697
Jurisdiction invoked
Environment and Land Court Act, section 7 of the Civil Procedure Act CAP 21 invoked on res judicata

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, "Doki Investment Ltd v Silas Kipchillat & 4 others [2017] KEELC 827 (KLR)", Case Analysis (2017). Environment and Land Court Case No. 279 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/827/eng@2017-10-24

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