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ELCPartially AllowedNot stated in the excerpt (application dated 29th May 2019; preliminary objection dated 1st September 2018)· [2019] KEELC 942 (KLR)

Kenya Anti-Corruption Commission v Sheldon Livasia Mudogo & another [2019] KEELC 942 (KLR)

Environment and Land Court
5 November 2019
1,500 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 a land dispute because the same issues had already been decided in an earlier case between the same parties.

What this practically means

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Executive summary

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The 1st defendant, Sheldon Livasia Mugogo, brought an application (styled as a preliminary objection) dated 29th May 2019 under Sections 6 and 7 of the Civil Procedure Act and Order 1 Rule 10(2) and Order 17 of the Civil Procedure Rules, 2010, seeking dismissal of the plaintiff's suit with costs as res judicata and, alternatively, striking out of the 2nd defendant, a deceased party who had not been substituted. He argued that the issues of fraud and illegality in the plaintiff's claim over Kakamega/Municipality Block III/220 had already been determined in Kakamega High Court Judicial Review Miscellaneous Application No. 1 of 2011 (now ELC Judicial Review No. 11 of 2017), in which the judge found the 1st defendant had neither fraudulently nor illegally acquired the suit property, a decision never appealed; the parcel had since been subdivided into Block III/382 and Block III/383. The plaintiff opposed, contending that the prior judicial review challenged the procedure leading to revocation of title whereas this suit challenges the allocation, and that the matters raised could not properly be brought as a preliminary objection. Applying Mukisa Biscuit and Oraro v Mbajja, the court held that res judicata is a pure point of law properly raised as a preliminary objection. Comparing the proceedings, it found the same subject matter and substantially the same parties, and that the question of fraudulent or illegal acquisition had already been decided; entertaining the suit would amount to sitting on appeal over the judicial review judgment, a power the court does not possess. The court struck out the suit with costs, noting the plaintiff's remedy had been to appeal. No express order was made on the 2nd defendant or urgency certification.

Key legal issues

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01

Whether res judicata may be raised as a preliminary objection

Holding

Yes; res judicata is a pure point of law capable of disposing of the suit as a preliminary objection

Reasoning

Relying on Mukisa Biscuit Manufacturing Co Ltd v West End Distributors and Oraro v Mbajja, the court held that a preliminary objection must be a pure point of law, not blurred with facts. Res judicata can be determined by perusing the pleadings and prior proceedings, without needing to ascertain contested facts, so the objection is properly raised at this stage.

p. 2
02

Whether this suit is res judicata in view of Judicial Review No. 1 of 2011 (now ELC Judicial Review No. 11 of 2017)

Holding

Yes; the parties and subject matter are the same, and the issue of fraudulent/illegal acquisition was already decided in the judicial review proceedings

Reasoning

The court perused the prior proceedings and found the same subject matter (Kakamega Town Block III/220) and substantially the same parties, including the Kenya Anti-Corruption Commission which was enjoined in the judicial review. The question of whether the 1st defendant fraudulently or illegally acquired the parcel was already determined. Entertaining the suit would amount to sitting on appeal over the prior judgment, a power the court lacks.

p. 2

Legal principles established

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  • A preliminary objection must be a pure point of law and cannot be raised where facts must be ascertained
  • Where a prior suit between the same parties over the same subject matter has been heard and finally decided, a subsequent suit over the same issue is barred by res judicata

Court orders

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  1. 1.The plaintiff's suit is struck out with costs for being res judicata Environment and Land Court Judicial Review No. 11 of 2017 (formerly Judicial Review No. 1 of 2011)

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)Section 6
  • Civil Procedure Act (Cap 21)Section 7
  • Civil Procedure Rules, 2010Order 1 Rule 10(2)
  • Civil Procedure Rules, 2010Order 17

Cases cited (7)

  • Christopher Orina Kenyariri T/A Kenyariri & Associates Advocates v Salama Beach Hotel Limited Hans Juergen Langer Tour and Technology GMBH (Tour & Tech GMBH) Accredo AG
    Civil Suit No. 20 of 2015
  • Republic vs Attorney General & 4 others Ex parte Diamond Hashimlalji and Ahmed Hashimlalji
    (2014) eKLR
  • Kavin Aggrey Wakoli & another vs Housing Finance Company Kenya Limited
    (2015) eKLR
  • Republic vs Registrar of Titles & Another Ex parte David Gachina Murithi & Another
    (2014) eKLR
  • Republic vs Registrar of Titles Mombasa & 4 Others Ex parte Abdulgani Limited
    (2018) eKLR
  • Mukisa Biscuit Manufacturing Company Ltd vs West End Distributors Ltd
    (1969) E.A 696
  • Oraro vs. Mbajja
    [2005] e KLR
Jurisdiction invoked
Sections 6 and 7 of the Civil Procedure Act (Cap 21), Order 1 Rule 10(2) and Order 17 of the Civil Procedure Rules, 2010

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, "Kenya Anti-Corruption Commission v Sheldon Livasia Mudogo & another [2019] KEELC 942 (KLR)", Case Analysis (2019). Not stated in the excerpt (application dated 29th May 2019; preliminary objection dated 1st September 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/942/eng@2019-11-05

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