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ELCPartially AllowedNot stated in excerpt· [2020] KEELC 1573 (KLR)

Agnetta Gazembe Mulama & 3 others v Stephen Saramba Viraghi [2020] KEELC 1573 (KLR)

Environment and Land Court
29 July 2020
971 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kakamega court stopped an attempted land takeover by ordering that nothing on the disputed plot change until the full case is heard.

What this practically means

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Executive summary

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The applicants moved the Environment and Land Court at Kakamega by a notice of application dated 17th April 2020, brought under Article 150 of the Constitution, Sections 1A, 3A and 63(e) of the Civil Procedure Act, and Orders 40 and 51 of the Civil Procedure Rules 2010, seeking an interim injunction restraining the respondent from entering, constructing on, demolishing or trespassing on land parcel Kakamega/Budonga/2163. The 1st applicant claimed to have purchased the parcel in 1983 from the respondent's father and to have occupied it uninterrupted for 37 years, with the 2nd to 4th applicants as her tenants for 31 years, and alleged that unknown persons were moving around the plot with a view to demolishing structures. The respondent opposed the application by replying affidavit and raised a preliminary objection that the entire suit was res judicata, having been determined in Hamisi SRMCC No. 40 of 2018, ELC No. 318 of 2017 and Succession Case No. 861 of 2013. The court, applying Mukisa Biscuit and Oraro v Mbajja, held that the res judicata point was properly raised as a preliminary objection but, on perusing the cited pleadings, found that although the subject matter was the same, some parties differed and some defendants in ELC No. 318 of 2017 never entered appearance. The suit was therefore not res judicata. The preliminary objection was dismissed, the application found merited, and the court ordered maintenance of the status quo pending the hearing and determination of the suit, with costs of the application in the cause.

Key legal issues

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01

Whether the preliminary objection on res judicata was properly raised and sustainable

Holding

The res judicata objection was properly raised as a preliminary objection but failed because the parties in the cited suits were not the same

Reasoning

The court held that the res judicata question, being a point of law under Sections 6 and 7 of the Civil Procedure Act, was properly raised as a preliminary objection. However, on perusing the pleadings in Hamisi SRMCC No. 40 of 2018, ELC No. 318 of 2017 and Succession Case No. 861 of 2013, it found that although the subject matter was the same, some parties were different; in ELC No. 318 of 2017 the defendants were different and never entered appearance. The essential identity-of-parties requirement of res judicata was therefore not met.

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02

Whether interim relief should issue over Kakamega/Budonga/2163

Holding

The application was found merited and status quo ordered pending hearing and determination of the suit

Reasoning

Having dismissed the preliminary objection, the court turned to the application dated 17th April 2020, in which the 1st applicant claimed to have purchased the suit land in 1983 from the respondent's father and to have been in uninterrupted occupation for 37 years, with the 2nd to 4th applicants as tenants for 31 years. The court found the application merited and, rather than granting the precise injunction sought, directed maintenance of the status quo pending the hearing and determination of the suit, with costs in the cause.

p. 2

Legal principles established

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  • A preliminary objection must be a pure point of law; where facts must be ascertained or evidence adduced, it cannot succeed
  • Res judicata under Sections 6 and 7 of the Civil Procedure Act requires the same matter directly and substantially in issue between the same parties or parties claiming under them, litigating under the same title

Court orders

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  1. 1.Preliminary objection dismissed
  2. 2.Status quo to be maintained pending the hearing and determination of the suit
  3. 3.Costs of the application to be in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 150
  • Civil Procedure Act, Cap 21 Laws of KenyaSection 1A
  • Civil Procedure Act, Cap 21 Laws of KenyaSection 3A
  • Civil Procedure Act, Cap 21 Laws of KenyaSection 63(e)
  • Civil Procedure Act, Cap 21 Laws of KenyaSection 6
  • Civil Procedure Act, Cap 21 Laws of KenyaSection 7
  • Civil Procedure Rules 2010Order 40, Rules 1 & 2
  • Civil Procedure Rules 2010Order 51, Rule 1

Cases cited (2)

  • Mukisa Biscuit Manufacturing Company Ltd vs West End Distributors Ltd
    (1969) E.A 696
  • Oraro vs. Mbajja
    [2005] eKLR
Jurisdiction invoked
Article 150 of the Constitution; Sections 1A, 3A & 63(e) Civil Procedure Act; Order 40 Rules 1 & 2 and Order 51 Rule 1 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, "Agnetta Gazembe Mulama & 3 others v Stephen Saramba Viraghi [2020] KEELC 1573 (KLR)", Case Analysis (2020). Not stated in excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1573/eng@2020-07-29

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