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ELCOtherPetition dated 22nd August 2017 (Thika ELRC/Environment & Land Court)· [2018] KEELC 3421 (KLR)
Stanley Thuo Murunyu v Alice Waruguru Ngugi & 3 others [2018] KEELC 3421 (KLR)
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·~11 min to read original · ~4 min briefThe bottom line
#Kenya's Environment and Land Court ruled that res judicata cannot be used to strike out a case through a preliminary objection because it requires examining facts.
What this practically means
#Executive summary
#The Petitioner, Stanley Thuo Murunyu, filed a Petition on 22nd August 2017 seeking, among other reliefs, a declaration that the Award of the Ruiru Land Disputes Tribunal in claim TKA/LDT/50/2005 - which transferred land parcel Ruiru/Ruiru East Block 1/302 back to Beatrice Mukuhi Mwangi (deceased) and ordered a refund of Kshs.450,000/- - was a nullity for want of jurisdiction over title to land. Together with the Petition he sought conservatory orders restraining interference with the suit property. The 1st Respondent filed a Notice of Preliminary Objection contending that the Petition was res judicata, having been heard and dismissed in Judicial Review (Nairobi High Court Misc.Civil Appl. No.588 of 2007) by A. Mbogholi Msagha J on 3rd November 2010, and that the subsequent Court of Appeal appeal had abated; it sought striking out of the Petition as an abuse of process. The 2nd and 3rd Respondents filed a similar objection which was later withdrawn. The Petitioner opposed, arguing res judicata cannot be raised by way of Preliminary Objection as it requires probing of evidence. Applying the Mukisa Biscuits test and related authorities, L. Gacheru J held that the objection did not raise a pure point of law, required ascertainment of facts from the prior Judicial Review proceedings, and did not meet the test of a Preliminary Objection. The objection was dismissed entirely with costs in the cause; the Petition and the Notice of Motion were directed to be heard on merit, with 14 days' leave to the Respondents to file Replying Affidavits and corresponding leave to the Petitioner to file a Supplementary Affidavit. Delivered at Thika on 13th April 2018.
Key legal issues
#01
Whether res judicata can be raised by way of Preliminary Objection
Holding
No - res judicata requires ascertaining facts from the prior proceedings and cannot be determined on a Preliminary Objection
Reasoning
The court applied the Mukisa Biscuits definition of a Preliminary Objection as a pure point of law and authorities holding that res judicata requires evidence of prior pleadings and proceedings. Determining whether issues in the Petition were directly and substantially in issue in the prior Judicial Review would require calling for those proceedings. The objection therefore did not meet the test and was dismissed with costs in the cause.
p. 4
Legal principles established
#- A Preliminary Objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised if any fact has to be ascertained
- An issue of res judicata involves probing of evidence and cannot be determined via a Preliminary Objection; the proper course is a Notice of Motion with pleadings annexed
Court orders
#- 1.The Notice of Preliminary Objection filed by the 1st Respondent is dismissed entirely with costs being in the cause
- 2.The Petitioner's Notice of Motion dated 21st August 2017 and the Petition even dated to be heard and determined on merit
- 3.Respondents granted leave of 14 days from the date of the ruling to file their Replying Affidavits, with corresponding leave to the Petitioner to file a Supplementary Affidavit if need be
- 4.The Notice of Motion application to be given a hearing date
- Jurisdiction invoked
- Article 162(2)(b) / Environment and Land Court Act (not expressly quoted; petition filed in Environment and Land Court at Thika)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stanley Thuo Murunyu v Alice Waruguru Ngugi & 3 others [2018] KEELC 3421 (KLR)", Case Analysis (2018). Petition dated 22nd August 2017 (Thika ELRC/Environment & Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3421/eng@2018-04-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.