Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCStruck OutNot stated in the judgment (suit filed 8th February 2019; prior proceedings: Misc. Land Case No. 11 of 2007 and Judicial Review Application No. 10 of 2009)· [2019] KEELC 43 (KLR)

John Allan Onchiri Masese v Reuben Kipngetich Mabil & another [2019] KEELC 43 (KLR)

Environment and Land Court of Kenya
17 December 2019
MKMohammed Kullow
862 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

A Kenyan land owner's trespass and boundary suit was thrown out because the same dispute had already been decided in earlier cases.

What this practically means

#

Executive summary

#
By a Notice of Preliminary Objection dated 12th June 2019, the Defendants contended that the Plaintiff's suit, filed on 8th February 2019 seeking an injunction against trespass on land parcel Cis Mara/Ilmotiok/464 and determination of boundaries, was barred by section 7 of the Civil Procedure Act as res judicata. The Defendants relied on a decree issued on 20th November 2017 in Misc. Land Case No. 11 of 2007, confirming an award of Land Disputes Tribunal Case No. 6 of 2006 over parcels Cis Mara/Ilmotiok/463, 464 and 465, and on Judicial Review Application No. 10 of 2009 in the High Court, which was dismissed. The Plaintiff argued that the present suit concerned the tort of trespass and that the tribunal had no jurisdiction over boundaries. Applying the Mukisa Biscuit test, the court found the objection was a pure point of law. Comparing the pleadings with the prior proceedings, Kullow J held that the same parties had litigated over the same land before the Land Disputes Tribunal, the High Court in Nakuru, and now before the court, and that a determination had been made. The court allowed the preliminary objection, dismissed the suit with costs to the defendants, and directed that the judgment be dated, signed and delivered in open court at Narok on 17th December 2019.

Key legal issues

#
01

Whether the suit is res judicata under section 7 of the Civil Procedure Act

Holding

The suit is res judicata; the preliminary objection is allowed and the suit dismissed with costs

Reasoning

The court compared the pleadings with the decree issued by the Principal Magistrate's Court Narok pursuant to the Land Disputes Tribunal award (Misc. Land Case No. 11 of 2007) and Judicial Review Application No. 10 of 2009. The same parties had litigated over the same parcel of land in prior proceedings which were conclusively determined. Section 7 therefore barred the instant suit.

p. 2
02

Whether the preliminary objection was properly raised as a pure point of law

Holding

The objection based on section 7 of the Civil Procedure Act met the Mukisa Biscuit threshold

Reasoning

Applying the settled principles in Mukisa Biscuit Manufacturing Co. Ltd v Westend Distributors Ltd, the court held that a preliminary objection must consist of pure points of law, not hybrid points of law and fact. Since the objection was founded on section 7 of the Civil Procedure Act, the defendant met the threshold to raise it.

p. 1

Legal principles established

#
  • A preliminary objection should ordinarily consist of pure points of law and not a hybrid point involving both points of law and of facts
  • A matter is res judicata under section 7 of the Civil Procedure Act where the matter in issue is identical in both suits, the parties are the same and a determination of the issues was made

Court orders

#
  1. 1.The preliminary objection dated 12th June, 2019 is allowed
  2. 2.The suit is dismissed with costs to the defendants

Authorities

#

Legislation

  • Civil Procedure Actsection 7

Cases cited (1)

  • Mukisa Biscuit Manufacturing Company Limited v Westend Distributors Limited
    (1969) EA 696
Jurisdiction invoked
Original jurisdiction; suit determined under section 7 of the Civil Procedure Act (res judicata)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "John Allan Onchiri Masese v Reuben Kipngetich Mabil & another [2019] KEELC 43 (KLR)", Case Analysis (2019). Not stated in the judgment (suit filed 8th February 2019; prior proceedings: Misc. Land Case No. 11 of 2007 and Judicial Review Application No. 10 of 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/43/eng@2019-12-17

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