Kenya Methodist University v New Chota Raha Limited [2019] KEELC 3151 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a university's attempt to block a tenant's application, confirming that matters struck out for lack of jurisdiction can't count as previously decided.
What this practically means
#Executive summary
#Key legal issues
#Whether the defendant's notice of motion dated 23rd July 2018 was properly before the court despite the tribunal proceedings
The motion was properly before the court as an interlocutory application in a pending suit, not an appeal against the tribunal ruling
The defendant is a party to the suit brought by the plaintiff by plaint dated 11th December 2012 and is entitled to make applications permissible under the Civil Procedure Rules. It has a right to be heard, and the application was not expressed as an appeal or a stay of the tribunal's decision but as interim relief in the pending suit.
Whether the application was res judicata having regard to the ruling of the Business Premises Rent Tribunal of 6th July 2018
Res judicata did not apply because the tribunal struck out the reference for want of jurisdiction, so the cause was never heard and finally decided by a competent court
Applying Lotta vs Tanaki, the five conditions for res judicata must co-exist, including that the former suit was heard and finally decided by a competent court. The tribunal upheld a preliminary objection that it lacked jurisdiction and struck out the reference; the issues in the notice of motion were never determined on the merits.
Whether grounds asserting the right to levy distress and its procedure could support a preliminary objection
No - those grounds raise questions of fact, not pure points of law, and cannot sustain a preliminary objection
Relying on the Mukisa Biscuit definition, a preliminary objection must raise a pure point of law on assumed facts. Whether the plaintiff had a right to levy distress and whether the distress procedure was correctly followed are factual questions requiring evidence, and res judicata itself is a matter of fact calling for proof.
Legal principles established
#- A preliminary objection raises a pure point of law and cannot be raised where facts have to be ascertained or judicial discretion exercised
- Res judicata requires that the matter in issue was heard and finally decided by a court of competent jurisdiction; a striking out for want of jurisdiction does not satisfy this
- A party to a pending suit is entitled to make permissible interlocutory applications and has a right to be heard
Court orders
#- 1.The notice of preliminary objection dated 30th July 2018 is dismissed.
- 2.Costs of the preliminary objection to abide the outcome of the main suit.
- Jurisdiction invoked
- Original suit pending before the court; application brought under Order 40 rules 1, 4, 5, 8 and 10 and Order 51 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Methodist University v New Chota Raha Limited [2019] KEELC 3151 (KLR)", Case Analysis (2019). Notice of motion dated 23rd July 2018 in a suit by plaint dated 11th December 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3151/eng@2019-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.