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ELCDismissedPetition filed on 21st April 2021 (Kakamega)· [2021] KEELC 207 (KLR)

Kenneth Shitsugane Olembo v County Government of Kakamega & another [2021] KEELC 207 (KLR)

Environment and Land Court
14 December 2021
DOD. O. Ohungo
1,235 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The petitioner, claiming to be heir and administrator of the estate of the late Reuben James Olembo, registered owner of Kakamega/Town/Block 111/34, filed a petition alleging that the County Government of Kakamega formed a second respondent (a committee) to repossess undeveloped plots, that the committee is unconstitutional, and that repossession of the suit property would infringe his rights to property and fair hearing. He sought declarations, a permanent injunction and costs, together with a stay of proceedings before the Kakamega County Land Application Tribunal. The respondents filed a Notice of Preliminary Objection dated 14th June 2021 contending that the matter was res judicata in light of Eunice Khalwali Miima v County Government of Kakamega [2021] eKLR, that the second respondent had no capacity to be sued, and that the suit was premature and an abuse of process. The court applied the Mukisa Biscuit test, holding that a valid preliminary objection must be a pure point of law requiring no ascertainment of facts. Since the earlier case was introduced only by the respondents and its existence, parties and determined issues needed evidential proof, and since the capacity of the second respondent also required verification by evidence, the objection failed. The court dismissed the preliminary objection with costs in the cause, directing the respondents to file a substantive application if they wished to pursue those issues.

Key legal issues

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Whether the respondents' Notice of Preliminary Objection was a valid preliminary objection within the Mukisa Biscuit test

Holding

The objection was not a valid preliminary objection because both the res judicata claim and the capacity-to-be-sued claim required evidence to establish.

Reasoning

Applying Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd, a preliminary objection must be a pure point of law argued on the assumption that all pleaded facts are correct. The petition nowhere referred to the Eunice Khalwali Miima case; it was the first respondent who introduced it. Its existence, parties and determined issues therefore required proof by evidence. Equally, the second respondent's capacity to be sued needed verification by evidence. An objection propped up by evidence is not a valid preliminary objection.

p. 2

Legal principles established

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  • A valid preliminary objection must raise a pure point of law argued on the assumption that all facts pleaded by the opposing party are correct; an objection requiring evidence to establish cannot be a valid preliminary objection.
  • Res judicata should generally be raised through a substantive application to which the pleadings and decision of the earlier case are annexed, unless the party against whom it is raised had availed them beforehand.

Court orders

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  1. 1.Dismissal of Notice of Preliminary Objection dated 14th June 2021
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 7

Cases cited (2)

  • Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd
    (1969) EA 696
  • Eunice Khalwali Miima v County Government of Kakamega
    [2021] eKLR
Jurisdiction invoked
Constitutional petition under the Constitution (petitioner alleging infringement of right to property and fair hearing); court's jurisdiction challenged by preliminary objection

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "Kenneth Shitsugane Olembo v County Government of Kakamega & another [2021] KEELC 207 (KLR)", Case Analysis (2021). Petition filed on 21st April 2021 (Kakamega). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/207/eng@2021-12-14

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