David Kiprotich arap Too v Stephen Mburu Njoroge [2019] KEELC 508 (KLR)
The bottom line
#The Environment and Land Court in Kakamega struck out an eviction suit because the same land dispute had already been finally decided in earlier court cases.
What this practically means
#Executive summary
#Key legal issues
#Whether the issue of res judicata is properly raised as a preliminary objection
Yes - the question whether the suit is res judicata or sub judice is a point of law properly raised as a preliminary objection
Relying on Mukisa Biscuit and Oraro v Mbajja, the court held that a preliminary objection must be a pure point of law not blurred with contested facts. The issue of res judicata, tested against prior court decisions which the court could peruse, does not require the ascertainment of facts or exercise of discretion, and is therefore properly raised as a preliminary point.
Whether the suit is res judicata
The suit is res judicata and the plaintiff is a vexatious litigant; the preliminary objection is upheld and the suit struck out with costs
The court perused the rulings and judgments of the prior courts: the Likuyani Division Land Disputes Tribunal award in Case 9 of 2005, adopted in Kakamega CM Misc. Application No. 20 of 2006, invalidated by Eldoret High Court Misc. Application No. 88 of 2006, the lost appeal in Civil Application No. 254 of 2007, and Eldoret ELC No. 964 of 2012. The parties and subject matter were similar and the matter had gone up to the Court of Appeal.
Legal principles established
#- A preliminary objection must be a pure point of law; it cannot be raised where facts must be ascertained or judicial discretion exercised
- A suit is res judicata where the matter in issue, the parties, the claim/title and the finality of the previous decision coincide
- The bar on re-litigating matters already heard and finally decided is contained in Sections 6 and 7 of the Civil Procedure Act Cap 21
Court orders
#- 1.The preliminary objection is upheld
- 2.The suit is struck out
- 3.Costs of the suit awarded to the defendant (referred to as respondent in the order)
- Jurisdiction invoked
- Environment and Land Court jurisdiction; preliminary objection considered under Section 6 and 7 of the Civil Procedure Act Cap 21 (res judicata and sub judice)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Kiprotich arap Too v Stephen Mburu Njoroge [2019] KEELC 508 (KLR)", Case Analysis (2019). Not stated in the excerpt provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/508/eng@2019-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.