Joshua Masila Malombe v Cosmus W Malombe & another [2021] KEELC 2064 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the suit is res judicata Kitui PMCC No. 296 of 2006
The plea fails because the pleadings and consent order in the former suit were not placed before the court
The court applied Section 7 of the Civil Procedure Act and Mburu Kinyua v Gachini Tutu, holding that res judicata requires proof that the same matters were litigated between the same parties and finally decided. As the 1st Defendant did not annex the pleadings or the consent order from Kitui PMCC No. 296 of 2006, the court could not compare the parties, subject matter and prayers, and the objection was incompetent.
Whether the court lacks jurisdiction because the suit property's value is below Kshs. 20,000,000
The objection fails for want of evidence of the value of the suit property
The 1st Defendant contended the suit land, measuring 50ft by 100ft, was worth less than Kshs. 20,000,000 and thus within magistrates' courts' jurisdiction, while the Plaintiff valued the parent parcel at approximately Kshs. 50,000,000. The court found the 1st Defendant had not annexed a valuation report to substantiate the value, so the jurisdictional objection could not succeed.
Legal principles established
#- For a plea of res judicata to succeed, the applicant must demonstrate the matter directly and substantially in issue was directly and substantially in issue in a former suit between the same parties or their privies, litigating under the same title, before a competent court, and finally decided
- A party raising res judicata must place before the court the pleadings and decision in the former suit; without them the plea cannot be evaluated
Court orders
#- 1.The Notice of Preliminary Objection dated 20th August, 2020 is struck out with costs
- Jurisdiction invoked
- Environment and Land Court jurisdiction under applicable statute; preliminary objection on jurisdiction and res judicata under Section 7 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joshua Masila Malombe v Cosmus W Malombe & another [2021] KEELC 2064 (KLR)", Case Analysis (2021). Not stated in extract (Kitui EL suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2064/eng@2021-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.