Daniel Mwangi Nganga v National Water Conservation & Pipeline Corporation & 3 others [2019] KEELC 644 (KLR)
The bottom line
#The Environment and Land Court in Murang'a refused to strike out a land dispute claim, ruling the objections needed evidence at a full trial.
What this practically means
#Executive summary
#Key legal issues
#Res judicata
The plea fails because the WAB decision was quashed for lack of jurisdiction and there was no evidence of a final determination in HCC No. 976 of 2001
The court set out the five ingredients of res judicata under Section 7 of the Civil Procedure Act. It found that the WAB decision was quashed by the High Court in JR No. 253 of 2011 for being ultra vires the Water Act, meaning no competent court finally determined the issues. Further, no proceedings or orders from HCC No. 976 of 2001 were placed on record, so the court could not ascertain what transpired there.
Limitation of actions
The limitation objection cannot be resolved on the pleadings; when the cause of action arose requires evidence
Although the water tank was constructed in 1972, the Plaintiff acquired the suit land only in 1997 per the title issued on 25/3/1997. When the cause of action accrued, and whether the negligence and nuisance are continuing, are factual questions requiring evidence at full trial. The claim is for compensation for use of land and nuisance, not recovery of land, so sections 7 and 17 do not plainly bar it.
Character of the application
The striking-out application is in substance a preliminary objection, and it fails as it is not a pure point of law
Although urged as a Notice of Motion under Order 2 Rule 15(1)(d), the court considered it a preliminary objection disguised as an application. Applying the Mukisa Biscuit definition, both issues raised required consideration of evidence, removing the objection from the province of a pure point of law. The application was therefore dismissed with costs.
Legal principles established
#- Res judicata cannot found where the prior decision was quashed for lack of jurisdiction, as there was no final determination by a competent court
- An objection requiring consideration of evidence is not a pure point of law within the Mukisa Biscuit definition
Court orders
#- 1.The Notice of Motion dated 3/5/2019 seeking striking out of the Plaint is dismissed
- 2.Costs of the application awarded to the Plaintiff/Respondent
- 3.The matter to proceed to full trial
- Jurisdiction invoked
- First-instance civil suit; application under Section 4(2) and 7 of the Limitation of Actions Act, Section 7 of the Civil Procedure Act and Order 2 Rule 15(1)(d) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Daniel Mwangi Nganga v National Water Conservation & Pipeline Corporation & 3 others [2019] KEELC 644 (KLR)", Case Analysis (2019). Not stated in the judgment (suit number not indicated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/644/eng@2019-11-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.