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ELCAllowedAppeal dated 30.1.2018 (Meru ELC First Appeal)· [2021] KEELC 307 (KLR)

Pauline Mpaka v Marete M’iringo & 3 others;John Mbaya M’iringo (Interested Party) [2021] KEELC 307 (KLR)

Environment and Land Court
20 December 2021
1,739 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed that res judicata claims need evidence, so a suit cannot be struck out through a preliminary objection alone.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Meru against a decision of the lower court which upheld a preliminary objection by the 3rd and 4th respondents that the appellant's notice of motion dated 9.5.2018 was res judicata, having regard to Meru CMCC No. 744 of 1999 consolidated with No. 321 of 1992, in which an eviction order had been issued on 14.4.2003, and struck out the suit. At the lower court the appellant, the widow of the deceased, had sued her brothers-in-law and purchasers for breach of trust in subdividing and transferring Parcel No. Ntima/Ntakira/1808 without giving her a share despite about 40 years of occupation, and sought cancellation of the title and a permanent injunction against eviction. The ELC framed two issues: whether the preliminary objection was a pure point of law and whether the trial court was justified in striking out the suit. Applying Mukhisa Biscuits, Oraro v Mbaja and Henry Wanyama Khaemba, the court held that res judicata requires probing evidence and disputed facts cannot found a preliminary objection; the respondents had not placed the pleadings and rulings from the previous suits before the trial court. Allowing the appeal with costs, the court found the trial court had erred in law and in fact in upholding the objection.

Key legal issues

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01

Whether the preliminary objection on res judicata was a pure point of law

Holding

It was not; establishing res judicata required factual and evidential probing, so the trial court erred in upholding it.

Reasoning

The court found that to determine res judicata the trial court had to establish whether the parties, issues and subject matter were the same and whether a competent court had finally determined the issues. Those were questions of fact and evidence. The necessary pleadings, pleadings and rulings from the previous suits were never placed before the trial court, and the relevant material was in replying affidavits containing disputed facts, which cannot found a preliminary objection.

p. 3
02

Whether the trial court was justified in striking out the suit

Holding

No; having wrongly upheld a preliminary objection that was not a pure point of law, the trial court erred in law and in fact.

Reasoning

Since the preliminary objection dated 22.5.2018 did not rest on pure points of law, its upholding and the resulting striking out of the suit were erroneous. The 3rd and 4th respondents had not even filed a defence, and the res judicata material they relied on was contained in affidavits rather than pleaded or proved, denying the appellant a hearing on the merits.

p. 3

Legal principles established

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  • A preliminary objection must be a pure point of law and cannot rest on disputed facts or evidence.
  • Issues of res judicata require probing evidence and cannot be determined as a preliminary objection.

Court orders

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  1. 1.The appeal is allowed with costs to the appellant
  2. 2.Orders accordingly

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (9)

  • Selle & Another v Associated Motor Boat Co. Ltd & Another
    (1968) EA 123
  • Kanorero River Farm Ltd –vs- National Bank of Kenya Ltd
    [2002] eKLR
  • Dorcas Mumo Mutua –vs- Equity Bank Ltd & 3 Others
    [2017] eKLR
  • Orina Kenyariri –vs- Salama Beach Hotel Limited & 3 others
    [2017] eKLR
  • Mukhisa Biscuits Manufacturing Co. Ltd –vs- West End Distributors Ltd
    [1969] E.A 696
  • Oraro –vs- Mbaja
    [2005] 1 KLR 141
  • Henry Wanyama Khaemba –vs- Standard Chartered Bank Ltd & Another
    [2014] eKLR
  • Ben Wangome & Another –vs- Pattansi Valpal and 2 Others
    [2015] eKLR
  • Benford Mutegi Bohan & 5 Others –vs- James Mbaka
    [2019] eKLR
On appeal from
Magistrates' Court (Meru)
Jurisdiction invoked
First appeal from the lower court to the Environment and Land Court

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, "Pauline Mpaka v Marete M’iringo & 3 others;John Mbaya M’iringo (Interested Party) [2021] KEELC 307 (KLR)", Case Analysis (2021). Appeal dated 30.1.2018 (Meru ELC First Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/307/eng@2021-12-20

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