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ELCOtherMachakos ELC No. 1 of 2021· [2021] KEELC 1184 (KLR)

Richard Makau Nzyimi & another v Wilfred Ng’ang’a Ngaruiya & another; Paul Musila Kimeu [the administrator, Syokimau Farm Ltd] (Interested Party); Registered Trustees of Faith Mission Church & 13 others (Proposed Interested Parties) [2021] KEELC 1184 (KLR)

Environment and Land Court
1 November 2021
1,255 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed you cannot get a case dismissed as 'already decided' through a shortcut—you must file a formal application with evidence.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Machakos determined the 1st Defendant's Notice of Preliminary Objection dated 14th April 2021, which asserted that Machakos ELC No. 1 of 2021 was res judicata with respect to Machakos ELC No. 226 of 2016 and should be dismissed with costs. The 1st Defendant's submissions were not on record, and the Plaintiff's submissions addressed an unrelated suit. The proposed Interested Parties submitted that although the same parcel of land (LR No. 12715/15) was involved, save for one common party, Wilfred Ng'ang'a Ngaruiya, the parties and claims in the two suits were different, and that their joinder application in the former suit, having been dismissed, was pending appeal in the Court of Appeal. The court reproduced section 7 of the Civil Procedure Act and applied the conjunctive elements of res judicata as set out in Kenya Commercial Bank v Benjoh Amalgamated. It then applied the Mukisa Biscuit definition of a preliminary objection as a pure point of law, together with Henry Wanyama Khaemba and George Kamau Kimani, which hold that res judicata requires probing of evidence and should be raised by Notice of Motion with pleadings annexed. Concluding that the facts of both suits had to be ascertained, the court found the objection not meritorious and struck it out with costs on 1st November 2021.

Key legal issues

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01

Whether res judicata may be raised by way of preliminary objection

Holding

It may not; a formal application by Notice of Motion with pleadings annexed is required because the court must ascertain the facts of both suits and the former decision

Reasoning

The court applied Mukisa Biscuit (definition of a true preliminary objection as a pure point of law) and authorities holding that res judicata requires probing of evidence. Section 7 of the Civil Procedure Act requires comparison of parties, subject matter and the former decision, which necessitates ascertainment of facts. Since the 1st Defendant's objection required probing of evidence concerning Machakos ELC No. 226 of 2016 and the present suit, it was not a true preliminary objection and was struck out with costs.

p. 3
02

The elements of res judicata under section 7 of the Civil Procedure Act

Holding

The elements are conjunctive: the matter must have been directly and substantially in issue in a former suit between the same parties or parties claiming under them, litigating under the same title, before a competent court, and heard and finally decided

Reasoning

The court reproduced section 7 of the Civil Procedure Act and cited KCB v Benjoh Amalgamated, noting the elements are conjunctive rather than disjunctive and that the doctrine serves finality of litigation. The proposed Interested Parties submitted that save for the subject land and one common party, there was no nexus between the two suits, with the Machakos ELC No. 226 of 2016 joinder decision under appeal. The court did not decide the merits of res judicata, holding the objection procedurally defective.

p. 2

Legal principles established

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  • A ground of res judicata requires a formal application (Notice of Motion) with pleadings annexed, as it requires ascertainment of facts, and cannot be raised by way of preliminary objection
  • A preliminary objection must be a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised where facts must be ascertained

Court orders

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  1. 1.The Notice of Preliminary Objection dated 14th April, 2021 is struck out with costs

Authorities

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Legislation

  • Civil Procedure Actsection 7

Cases cited (5)

  • Kenya Commercial Bank Limited vs Benjoh Amalgamated Limited & Another
    (2017) eKLR
  • Independent Electoral & Boundaries Commission v Maina Kiai & 5 others
    (2007) eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd
    (1969) EA 696
  • Henry Wanyama Khaemba vs Standard Chartered Bank Ltd & Another
    (2014) eKLR
  • George Kamau Kimani & 4 Others vs County Government of Trans Nzoia & Another
    (2014) eKLR
Jurisdiction invoked
not stated in the judgment (Environment and Land Court, Machakos)

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, "Richard Makau Nzyimi & another v Wilfred Ng’ang’a Ngaruiya & another; Paul Musila Kimeu [the administrator, Syokimau Farm Ltd] (Interested Party); Registered Trustees of Faith Mission Church & 13 others (Proposed Interested Parties) [2021] KEELC 1184 (KLR)", Case Analysis (2021). Machakos ELC No. 1 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1184/eng@2021-11-01

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