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ELCDismissedELC Case (Busia) - suit over land parcel BUNYALA/BULEMIA/188, defence filed 10/4/2019· [2019] KEELC 5078 (KLR)

Wilson Okumu Kaburu (suing on his behalf and as the Leg. of the estate of Peter Were v Joseph Wanjala Oduba [2019] KEELC 5078 (KLR)

Environment and Land Court
11 September 2019
960 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Busia Environment and Land Court dismissed a landowner's bid to end a suit as res judicata because disputed facts required a full trial.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Busia (Kaniaru J) determines a preliminary objection raised by the Defendant contending that the Plaintiff's suit over land parcel BUNYALA/BULEMIA/188 is res judicata, the same dispute having been determined in PMCC No. 98/2009, Busia, where the decision of the Bunyala Land Disputes Tribunal was adopted, and that order remaining in force. The Defendant relied on several authorities including John Florence Maritime Services and the court's own decision in Peter Omuse. The Plaintiff opposed, arguing that the tribunal proceedings were not on the court record, that the claim rested on a customary trust never raised at the tribunal, that the tribunal was incompetent to determine ownership, and that a preliminary objection cannot rest on facts requiring ascertainment. The court held that the objection was misconceived in form: unlike Omuse, nothing was admitted and the crucial facts required evidence at trial. The court also disregarded documentary evidence the Defendant annexed to written submissions as procedurally irregular. Following Muiruri v Kimemia, Sirma v Kiprono and the locus classicus Mukisa Biscuit, the court held that a preliminary objection must be a pure point of law. The objection was dismissed with costs to the Plaintiff, with liberty effectively left for the Defendant to raise res judicata at trial.

Key legal issues

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01

Whether res judicata could be determined on a preliminary objection

Holding

It could not, because the facts underpinning the plea were disputed and unadmitted and required trial evidence

Reasoning

The court distinguished its own decision in Peter Omuse, where the issue was raised by formal application and the plaintiff had admitted the issues had been handled at the Land Disputes Tribunal. Here nothing is admitted, the tribunal proceedings were not even on the record when the objection was intimated, and the truth of the res judicata claim required evidence. The Defendant should have awaited trial.

p. 2
02

Whether evidence annexed to written submissions could sustain the objection

Holding

No - the court disregarded documentary evidence attached to submissions as procedurally irregular

Reasoning

The Defendant attached evidence to submissions in support of the preliminary objection. The court held that procedure must be observed, treated the annexures as ignorable, and ignored them. The Plaintiff had correctly objected that it was irregular to raise a point of law and then argue it through submissions with annexed documentary evidence.

p. 2

Legal principles established

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  • A preliminary objection must raise a pure point of law on the assumption that all facts pleaded by the other side are correct; it cannot be raised if any fact has to be ascertained

Court orders

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  1. 1.The Preliminary Objection is dismissed with costs to the Plaintiff

Authorities

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Legislation

  • Civil Procedure Act (cap 21)Section 7

Cases cited (7)

  • R VS NATIONAL ENVIRONMENTAL TRIBUNAL EXPARTE ORBIT CHEMICAL INDUSTRIES LIMITED & Another
    [2013] eKLR
  • NYANZA GARAGE Vs ATTORNEY GENERAL
    HCC No. 450/1993, Kampala
  • JOHN FLORENCE MARITIME SERVICES LIMITED Vs CABINET SECRETARY FOR TRANSPORT AND INFRASTRUCTURE & 3 others
    [2015] eKLR
  • PETER OMUSE Vs DORCAS ODUNGA OGOYE
    ELC NO. 110/2016, Busia
  • MUIRURI Vs KIMEMIA
    (2002) 2 KLR 677
  • SIRMA Vs KIPRONO
    [2005] 1 KLR 197
  • MUKISA BISCUIT CO. LTD Vs WEST END DISTRIBUTORS LTD
    [1969] EA 696
Jurisdiction invoked
Article 162(2)(b) Constitution (Environment and Land Court) - implied; suit concerns ownership of land parcel Bunyala/Bulemia/188

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Wilson Okumu Kaburu (suing on his behalf and as the Leg. of the estate of Peter Were v Joseph Wanjala Oduba [2019] KEELC 5078 (KLR)", Case Analysis (2019). ELC Case (Busia) - suit over land parcel BUNYALA/BULEMIA/188, defence filed 10/4/2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/5078/eng@2019-09-11

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