Pamela Ogalo Oguta National Bank of Kenya [2021] KEELC 749 (KLR)
The bottom line
#The Environment and Land Court in Kisumu struck out a landowner's petition because she had already won the same case in a lower court.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection raises a pure point of law
It does, being founded on Section 7 of the Civil Procedure Act
The court applied the Mukisa Biscuit test and Oraro v Mbaja, holding that an objection grounded on Section 7 of the Civil Procedure Act (res judicata) is a point of law pleaded and arising from the pleadings, capable of disposing of the suit without ascertaining facts or exercising discretion.
Whether the Petition is res judicata / sub judice
Yes; the Petition offends Section 7 and is also caught by Section 6 of the Civil Procedure Act
The same parties had litigated the same relief (discharge of charge over Kisumu/Konya/2354) in Kisumu CM ELC No. 323 of 2018, decided on 18th June 2019 in the Petitioner's favour, with the Respondent's appeal No. 38 of 2020 pending. The ingredients of res judicata were satisfied and, in any event, the appeal pending rendered the Petition sub judice.
Whether the court lacks jurisdiction because an alternative clear procedure exists
Not separately determined on this ground; the Petition was struck out on res judicata/sub judice grounds
The Respondent relied on the Karume line of authority that where a sufficient statutory avenue exists, a party must pursue it rather than trivialize constitutional jurisdiction. The court did not expressly rule on this ground, its striking out being anchored on res judicata and sub judice.
Legal principles established
#- A preliminary objection must consist of a pure point of law, not blurred with facts requiring proof
- Res judicata requires identity of issues, parties, concurrence of jurisdiction, same subject matter and a final determination
- Where a previously instituted suit between the same parties over the same subject matter is pending, a court shall not proceed with the later suit (sub judice)
Court orders
#- 1.The Notice of Preliminary Objection succeeds
- 2.The Petition is struck off with costs
- Jurisdiction invoked
- Article 162(2) of the Constitution of Kenya (Environment and Land Court jurisdiction) - not expressly quoted; objection decided under Sections 6 and 7 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Telkom Kenya Limited v Roka Trading Company Limited & 5 others[2023] KEELC 19960 (KLR)21 Sept 2023
- Pamela Ogalo Oguta National Bank of Kenya [2021] KEELC 749 (KLR)[2021] KEELC 749 (KLR)24 Nov 2021
Cite this brief
#Cite this brief
Caselaw, "Pamela Ogalo Oguta National Bank of Kenya [2021] KEELC 749 (KLR)", Case Analysis (2021). ELC Petition dated 10th August 2020 (Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/749/eng@2021-11-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.