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ELCOtherNot stated in extract (Kitui EL suit)· [2021] KEELC 2064 (KLR)

Joshua Masila Malombe v Cosmus W Malombe & another [2021] KEELC 2064 (KLR)

Environment and Land Court
30 July 2021
1,082 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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This ruling of the Environment and Land Court at Machakos (O. A. Angote, J) determined the 1st Defendant's Notice of Preliminary Objection dated 20th August 2020 in a land dispute over Kyangwithya/Mulutu/1078, a subdivision of Kyangwithya/Mulutu/41. The 1st Defendant raised two limbs: first, that the suit was res judicata Kitui PMCC No. 296 of 2006 (Benson M. Muthiani & 16 Others v Boniface Kasee Malombe & 2 Others), in which a consent was recorded and after which the parent parcel was subdivided; and second, that the court lacked jurisdiction because the suit property, a 50ft by 100ft plot, was worth less than Kshs. 20,000,000, a value within the magistrates' courts' jurisdiction. The Plaintiff countered that the parties and prayers in the two suits differed, and that the parent parcel exceeded ten acres with a value of approximately Kshs. 50,000,000. The court applied the classic definition of a preliminary objection in Mukisa Biscuit and Section 7 of the Civil Procedure Act on res judicata, citing Mburu Kinyua v Gachini Tutu. It held that the 1st Defendant bore the burden of demonstrating the elements of res judicata but had failed to annex the pleadings and consent order from the Kitui suit, and had likewise not provided a valuation report on the value of the suit property. The preliminary objection was therefore found incompetent and struck out with costs.

Key legal issues

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01

Whether the suit is res judicata Kitui PMCC No. 296 of 2006

Holding

The plea fails because the pleadings and consent order in the former suit were not placed before the court

Reasoning

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.

p. 2
02

Whether the court lacks jurisdiction because the suit property's value is below Kshs. 20,000,000

Holding

The objection fails for want of evidence of the value of the suit property

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The Notice of Preliminary Objection dated 20th August, 2020 is struck out with costs

Authorities

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Legislation

  • Civil Procedure ActSection 7

Cases cited (3)

  • Mukisa Biscuit Manufacturing Co. Limited vs. West End Distributors Limited
    (1969) EA 696
  • Mburu Kinyua vs. Gachini Tutu
    (1978) KLR 69
  • Benson M. Muthiani & 16 Others vs. Boniface Kasee Malombe and 2 Others
    Kitui PMCC No. 296 of 2006
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

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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, "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.