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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether res judicata may be raised by way of preliminary objection
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
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.
The elements of res judicata under section 7 of the Civil Procedure Act
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
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.
Legal principles established
#- 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
#- 1.The Notice of Preliminary Objection dated 14th April, 2021 is struck out with costs
- Jurisdiction invoked
- not stated in the judgment (Environment and Land Court, Machakos)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.