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ELCStruck OutELC Petition dated 10th August 2020 (Kisumu)· [2021] KEELC 749 (KLR)

Pamela Ogalo Oguta National Bank of Kenya [2021] KEELC 749 (KLR)

Environment and Land Court
24 November 2021
2,731 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This Environment and Land Court at Kisumu decision, delivered by Antony Ombwayo J on 24th November 2021, determined a Notice of Preliminary Objection dated 16th October 2020 raised by the Respondent, National Bank of Kenya Limited, against a Petition filed by Pamela Ogalo Oguta seeking, among other things, discharge of charge over title Kisumu/Konya/2354. The Respondent contended that the Petition was res judicata under Section 7 of the Civil Procedure Act, having been determined in Kisumu CM ELC Case No. 323 of 2018 (judgment delivered 18th June 2019 in the Petitioner's favour), that an appeal (Kisumu High Court ELC Civil Appeal No. 38 of 2020) on the same matter was pending with stay of execution granted, and that the Petitioner had failed to pursue a clear alternative procedure. The Petitioner opposed, asserting the objection was an abuse of process, raised after inordinate delay, and that she was entitled to the fruits of her judgment. The court applied the Mukisa Biscuit test and Oraro v Mbaja to find the objection raised a pure point of law. Applying the Nguruman criteria, it found the ingredients of res judicata satisfied, as the same reliefs had been sought and determined between the same parties in the Chief Magistrate's Court, and further that the Petition was caught by Section 6 (sub judice) given the pending appeal. The Notice of Preliminary Objection succeeded and the Petition was struck off with costs to the Respondent.

Key legal issues

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01

Whether the preliminary objection raises a pure point of law

Holding

It does, being founded on Section 7 of the Civil Procedure Act

Reasoning

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.

p. 3
02

Whether the Petition is res judicata / sub judice

Holding

Yes; the Petition offends Section 7 and is also caught by Section 6 of the Civil Procedure Act

Reasoning

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.

p. 4
03

Whether the court lacks jurisdiction because an alternative clear procedure exists

Holding

Not separately determined on this ground; the Petition was struck out on res judicata/sub judice grounds

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The Notice of Preliminary Objection succeeds
  2. 2.The Petition is struck off with costs

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure ActSection 6
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Articles 47, 48 and 50
  • Universal Declaration of Human RightsArticle 17

Cases cited (16)

  • Mukisa Biscuit Manufacturing Co. Ltd Vs West End Distributors Ltd
    (1969) EA 696
  • The Independent Electoral and Boundaries Commission v Maina Kiai & 5 Others
    Nairobi CA Civil Appeal No. 105 of 2017 (2017) eKLR
  • Christopher Orina Kenyariri t/a Kenyariri & Associates Advocates v Salama Beach Hotel Limited & 3 Others
    (2017) eKLR
  • Peter Ochara Anam & 3 Others v Constituencies Development Fund Board & 4 Others
    (2011) eKLR
  • Gabriel Mutava & 2 Others v Managing Director Kenya Ports Authority
    (2016) eKLR
  • The Speaker of National Assembly v James Njenga Karume
    (1992) eKLR
  • Owners of Motor Vehicle Lillian 'S' v Caltex Oil (Kenya) Limited
    (1989) KLR 1
  • Givan Okallo Ingari & Another v Housing Finance Co. (K) Ltd
    Nairobi HCCC No. 79 of 2007 (2007) 2 KLR 232
  • Francis Joseph Kamau Ichatha v Housing Finance Company of Kenya Limited
    Civil Suit 414 of 2004
  • Scholastica Nyaguthii Muturi v Housing Finance Co. of Kenya Ltd & Another
    Civil Case No. 10 of 2010
  • Oraro V. Mbaja
    2005 eKLR
  • Nguruman Limited v Jan Bonde Nelsen & Another
    (2017) eKLR
  • Bernard Mugo Ndegwa v James Githae & 2 Others
    (2010) eKLR
  • Republic v Registrar of Societies - Kenya & 2 Others Ex-Parte Moses Kirima & 2 Others
    [2017] eKLR
  • Pamela Ogalo Oguta v National Bank of Kenya Limited
    Kisumu CM ELC Case No. 323 of 2018
  • National Bank of Kenya Limited v Pamela Ogalo Oguta
    Kisumu High Court ELC Civil Appeal No. 38 of 2020
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "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.