Stephen Njuguna Mwenda v Peter Mwicigi Mwangi [2021] KEELC 1633 (KLR)
The bottom line
#Kenya's Environment and Land Court in Thika dismissed a preliminary objection and granted review, holding that a suit dismissed for lack of jurisdiction is not res judicata.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection was merited
Not merited; the grounds either failed on the law or required ascertainment of facts
The ground that no appeal was filed did not defeat a review, since Order 45 contemplates review only where no appeal is preferred. The ground on leave to come on record failed because Order 9 Rules 9 and 10 allow the prayer to be combined with other prayers, and the applicant's application sought leave. The res judicata and defectiveness grounds required probing evidence and were therefore not pure points of law.
Whether the court had jurisdiction to determine the review when the judgment was passed by a judge no longer attached to the station
Yes, under Order 45 rule 2(2)
Although an application for review ought to be heard by the court which determined the matter and passed the decree, the judge who passed the decree (Hon. Justice O.A Angote, then based at Machakos ELC) was no longer attached to Thika ELC. Order 45 rule 2(2) empowered any other judge attached to that court to hear the review.
Whether the applicant established sufficient reason for review
Yes; the order of 8th June 2012 was not a true reflection of the ruling of 31st May 2012, and the suit was dismissed for want of jurisdiction, not on merit, so it was not res judicata
The magistrate's ruling allowed an application seeking a final dismissal because the court had declared lack of jurisdiction. The extracted order of 8th June 2012 recorded only that the suit be dismissed, misrepresenting the ruling. A suit dismissed for lack of jurisdiction cannot ground res judicata since the issues were never determined on merit. The court also noted interference with the lower court record, and held these constituted sufficient reason to exercise its discretion to review.
Legal principles established
#- A preliminary objection must be a pure point of law that can dispose of the suit without ascertaining facts or exercising discretion
- A ground of res judicata cannot properly be raised by way of preliminary objection because it requires probing of evidence and ascertainment of facts
- A suit dismissed for want of jurisdiction is not res judicata because the issues were never heard and determined on merit
- Where the judge who passed the decree is no longer attached to the court, any other judge attached to that court may hear a review application
- Review may only be granted on the grounds enumerated in Order 45 Rule 1 and not otherwise
Court orders
#- 1.Notice of Preliminary Objection dated 16th October 2019 dismissed entirely with costs
- 2.Notice of Motion Application dated 3rd October 2019 allowed entirely with costs to the Plaintiff/Applicant
- 3.Leave granted to M/S Waweru Nyambura & Company Advocates to come on record for the Plaintiff/Applicant after judgment
- 4.Review of the judgment dated 12th June 2019 and delivered on 28th June 2019 granted
- Jurisdiction invoked
- Order 45 rule 2(2) of the Civil Procedure Rules; Section 80 of the Civil Procedure Act (review jurisdiction of the court which passed the decree)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Stephen Njuguna Mwenda v Peter Mwicigi Mwangi [2021] KEELC 1633 (KLR)", Case Analysis (2021). ELC Case (Thika) - Notice of Motion dated 3rd October 2019 & Notice of Preliminary Objection dated 16th October 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1633/eng@2021-10-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.