Evangelistice Sponsors Association (Suing through its registered trustees and officials Bigvae Mzae & 2others) v George Michael Mburu & another [2019] KEELC 3078 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a society's second land dispute because the same fight had already been decided in Molo, reminding litigants one case per dispute.
What this practically means
#Executive summary
#Key legal issues
#Whether the objection that the suit was not instituted by the society's registered officials or trustees is a valid preliminary objection
Not a valid preliminary objection because determining who the valid officials or trustees are requires evidence
The court applied Oraro v Mbaja and the Mukisa Biscuit test: a preliminary objection must be a pure point of law decided on pleaded facts. Establishing the valid officials or trustees of ESA would require ascertainment of facts through evidence, which takes the ground outside the realm of preliminary objections. That ground was accordingly dismissed, though this did not save the suit because the res judicata ground succeeded.
Whether the suit is res judicata vis-à-vis CMCC No. 10 of 2015 (Molo)
Yes; the issues of ownership of and injunction over Elburgon Township/562 were directly and substantially in issue in the former suit between the same parties and were finally determined on 28th March 2017
Applying Section 7 of the Civil Procedure Act and John Florence Maritime Services, the court found the ingredients of res judicata satisfied: the 1st defendant was plaintiff in the former suit, ESA sued through trustees including the present plaintiffs' officials were parties, the subordinate court was competent, and the suit was finally decided. The ownership of and permanent injunction over the suit property were determined there, so this court could not revisit them except on appeal. The res judicata objection was upheld and the suit struck out.
Legal principles established
#- A valid preliminary objection must raise a pure point of law, argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where any fact has to be ascertained or where judicial discretion is sought
- Where a matter directly and substantially in issue has been heard and finally decided in a former suit between the same parties litigating under the same title before a competent court, a subsequent suit on it is barred by res judicata
Court orders
#- 1.The second ground of the preliminary objection (defective institution of suit by the society) dismissed
- 2.The first ground of the preliminary objection (res judicata) upheld
- 3.The plaintiffs' suit struck out with costs to the defendants
- Jurisdiction invoked
- Original civil jurisdiction; preliminary objection raised under Section 7 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Evangelistice Sponsors Association (Suing through its registered trustees and officials Bigvae Mzae & 2others) v George Michael Mburu & another [2019] KEELC 3078 (KLR)", Case Analysis (2019). Not stated in the judgment (plaint filed 19th June 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3078/eng@2019-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.