Agnetta Gazembe Mulama & 3 others v Stephen Saramba Viraghi [2020] KEELC 1573 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the preliminary objection on res judicata was properly raised and sustainable
The res judicata objection was properly raised as a preliminary objection but failed because the parties in the cited suits were not the same
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.
Whether interim relief should issue over Kakamega/Budonga/2163
The application was found merited and status quo ordered pending hearing and determination of the suit
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.
Legal principles established
#- 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
#- 1.Preliminary objection dismissed
- 2.Status quo to be maintained pending the hearing and determination of the suit
- 3.Costs of the application to be in the cause
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.