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ELCStruck OutNot stated in the excerpt provided· [2019] KEELC 508 (KLR)

David Kiprotich arap Too v Stephen Mburu Njoroge [2019] KEELC 508 (KLR)

Environment and Land Court
28 November 2019
1,031 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The plaintiff sued claiming to be the registered owner of Parcel Number Kakamega/Sergoit Scheme/44, alleging trespass by the defendant and seeking an eviction order and costs. The defendant raised a preliminary objection seeking striking out of the suit with costs on grounds that it was an abuse of court process intended to cleanse orders obtained through perjury, that the proper party (the defendant's employer, owner of the property) had not been sued, and that the matter was res judicata. The defendant traced a history of litigation: a Likuyani Division Land Disputes Tribunal award in Case No. 9 of 2005 giving the land to the plaintiff, adopted in Kakamega Chief Magistrates Court Misc. Application No. 20 of 2006, invalidated by Eldoret High Court Misc. Application No. 88 of 2006, an appeal lost in Civil Application No. 254 of 2007, and Eldoret ELC No. 964 of 2012 invalidating the award and order. The plaintiff, relying on Bernard Mugo Ndegwa v James Nderitu Githae, contended the suit was not res judicata. The court applied Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd and Oraro v Mbajja, holding that res judicata is a pure point of law properly raised as a preliminary objection, and invoked Sections 6 and 7 of the Civil Procedure Act. Having perused the prior rulings and judgments, the court found the parties and subject matter similar, the matter res judicata, and the plaintiff a vexatious litigant. The preliminary objection was upheld and the suit struck out with costs to the defendant (referred to as respondent in the order).

Key legal issues

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01

Whether the issue of res judicata is properly raised as a preliminary objection

Holding

Yes - the question whether the suit is res judicata or sub judice is a point of law properly raised as a preliminary objection

Reasoning

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.

p. 2
02

Whether the suit is res judicata

Holding

The suit is res judicata and the plaintiff is a vexatious litigant; the preliminary objection is upheld and the suit struck out with costs

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The preliminary objection is upheld
  2. 2.The suit is struck out
  3. 3.Costs of the suit awarded to the defendant (referred to as respondent in the order)

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Civil Procedure ActSection 7

Cases cited (3)

  • Bernard Mugo Ndegwa vs. James Nderitu Githae and 2 others
    (2010) eKLR
  • Mukisa Biscuit Manufacturing Company Ltd vs West End Distributors Ltd
    (1969) E.A 696
  • Oraro vs. Mbajja
    [2005] eKLR
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

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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, "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.