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ELCOtherMurang'a ELC (Originating Summons dated 18/11/2020; filed 10/11/2020)· [2021] KEELC 2011 (KLR)

Moses Mbatia vJoseph Wamburu Kihara [2021] KEELC 2011 (KLR)

Environment and Land Court
14 September 2021
JKJ. G. Kemei
2,316 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Applicants filed an Originating Summons on 18/11/2020 seeking declaratory orders that they had acquired title by adverse possession to 2 acres out of land parcel LOC3/GITURU/484. The Respondent raised a preliminary objection asserting that the suit was res judicata, having been determined in Murang'a ELC No. 89 of 2018 (formerly Nairobi HCCC No. 484 of 2008), that it offended section 7 of the Civil Procedure Act/Rules, and that it was frivolous, vexatious and an abuse of court process, and should be struck out with costs. The Applicants opposed, contending the objection was not a pure point of law, that the parties and issues differed, and that the earlier suit was not heard and determined on the merits. The court applied the Mukisa Biscuits test as affirmed by the Supreme Court in IEBC v Jane Cheperenger and found the objection a pure point of law since the facts were undisputed. It accepted that the parties and subject matter were substantially the same and that the ELC had jurisdiction. However, on the decisive question, the court - relying on Tee Gee Electrics v Kenya Industrial Estates and guided by Articles 50(1) and 159(2)(d) of the Constitution - held that a suit dismissed for want of prosecution is not 'heard and finally decided' on the merits and therefore cannot ground a plea of res judicata. The preliminary objection was dismissed with no orders as to costs. The adverse possession claim now proceeds to hearing.

Key legal issues

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01

What constitutes a valid preliminary objection

Holding

A preliminary objection must be a pure point of law which, if argued, may dispose of the suit, and cannot be entertained where facts are disputed or judicial discretion is sought

Reasoning

The court adopted the Mukisa Biscuits definition, as reiterated by the Supreme Court in the IEBC v Jane Cheperenger, and distilled a four-part test: pure point of law, pleaded facts assumed correct, no disputed facts, and no exercise of discretion. It found the facts here undisputed so the objection qualified as a pure point of law.

p. 2
02

Whether a suit dismissed for want of prosecution is res judicata

Holding

No. Dismissal for want of prosecution is not a hearing and final determination on the merits, so the plea of res judicata under section 7 of the Civil Procedure Act fails

Reasoning

Relying on Tee Gee Electrics v Kenya Industrial Estates, the court held that res judicata only arises where the earlier suit was resolved on the substantive merits. The court was guided by Article 50(1) on fair hearing and Article 159(2)(d) on substantive justice, and found the previous suit (ELC 89 of 2018) had been dismissed for want of prosecution, not heard and decided.

p. 3

Legal principles established

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  • A suit dismissed for want of prosecution is not 'heard and finally decided' on the merits and therefore does not found a plea of res judicata
  • A preliminary objection must be a pure point of law argued on the assumption that the facts pleaded by the opposite side are correct

Court orders

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  1. 1.The preliminary objection is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure Rules 2010Section 7 (as cited in the objection - noted as obscure)
  • Constitution of KenyaArticle 50(1)
  • Constitution of KenyaArticle 159(2)(d) and Article 159(2)
  • Constitution of KenyaArticle 162
  • Environment and Land Court ActSection 13; Section 19

Cases cited (8)

  • Nancy Mwangi T/A Worthlin Marketers v Airtel Networks (K) Ltd & others
    [2014] eKLR
  • Bernard Mugo Ndegwa v James Nderitu Githae & 2 others
    [2010] eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors
    [1969] EA 696
  • Hassan Nyanje Charo v. Khatib Mwashetani & 3 others
    Civil Application No. 14 of 2014, [2014] eKLR
  • Henderson vs Henderson
    (1843-60) ALL E.R 378
  • Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 others
    Civil Application No. 36 of 2014 [2015] eKLR
  • Nicholas Njeru Vs the Attorney General and 8 Others
    Civil Appeal No. 110 of 2011 [2013] eKLR
  • Tee Gee Electrics and Plastics Company Ltd vs. Kenya Industrial Estates Limited
    [2005] KLR 97
Jurisdiction invoked
Article 162 of the Constitution of Kenya and Section 13 of the Environment and Land Court Act (ELC jurisdiction)

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, "Moses Mbatia vJoseph Wamburu Kihara [2021] KEELC 2011 (KLR)", Case Analysis (2021). Murang'a ELC (Originating Summons dated 18/11/2020; filed 10/11/2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2011/eng@2021-09-14

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