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ELCDismissedELC Suit (Busia) – Third Party's Notice of Preliminary Objection dated 21st September 2016· [2019] KEELC 3037 (KLR)
James Nganga Muriuki (Suing as Chairman of Dricos Self Help Group) & another v Harold Lungaho Navodera & 2 others; James Nakhulo Orodi (Third Party) [2019] KEELC 3037 (KLR)
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·~3 min to read original · ~4 min briefThe bottom line
#Kenya's Environment and Land Court dismissed a land dispute objection because the party raising it never argued or submitted evidence to support it.
What this practically means
#Executive summary
#The court determined a notice of preliminary objection by the Third Party, James Nakhulo Orodi, dated 21st September 2016, contending that the Environment and Land Court lacked jurisdiction to entertain the suit against him or grant the 1st Defendant's reliefs, and that the suit was res judicata against him by virtue of judgments in Lower Court Civil Case No. 406 of 2008 and High Court Civil Appeal No. 56 of 2012, both between James Ng'ang'a Muriuki & Dricos Self Help Group and himself, concerning the same property. The Plaintiffs acknowledged the prior suits but said they sought different reliefs — mandatory orders compelling the Land Registrar and District Land Surveyor, Busia County, to identify the suit property LR BUKHAYO/BUGENGI/5198 and cancel Title Deed BUKHAYO/BUGENGI/8231 as an irregular subdivision — and that parties and reliefs differed. The 1st Defendant similarly argued the prior suits were not between the same parties or litigating under the same title under Section 7 of the Civil Procedure Act, and that his claim against the Third Party was one of contribution or indemnity arising only after judgment, citing Pontifex v Ford, Commissioner for Transport v F. Boero and Co. and Jessie Mwangi Gachango v Attorney General. Notably, the Third Party's counsel did not file submissions supporting his own objection. Kaniaru J held that an unprosecuted preliminary objection cannot be proved, and dismissed the objection without considering its merits.
Key legal issues
#01
Res judicata and jurisdiction objection by Third Party
Holding
Objection dismissed for failure to prosecute
Reasoning
The Third Party filed a notice of preliminary objection and grounds of opposition but chose not to file written submissions in support or argue it orally, while the Plaintiffs and 1st Defendant did file submissions. The court held that a notice of preliminary objection is merely a notice and cannot amount to proof without prosecution, so the objection failed without any need to reach its merits.
p. 2
Legal principles established
#- A preliminary objection must be prosecuted either orally or by written submissions; an unprosecuted objection cannot be proved
Court orders
#- 1.The Third Party's preliminary objection dated 21st September 2016 is dismissed
- Jurisdiction invoked
- Original jurisdiction under the Environment and Land Court Act; objection raised under Section 7 of the Civil Procedure Act (res judicata)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Nganga Muriuki (Suing as Chairman of Dricos Self Help Group) & another v Harold Lungaho Navodera & 2 others; James Nakhulo Orodi (Third Party) [2019] KEELC 3037 (KLR)", Case Analysis (2019). ELC Suit (Busia) – Third Party's Notice of Preliminary Objection dated 21st September 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3037/eng@2019-06-12
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