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ELCDismissedPreliminary Objection in suit filed by Plaint dated 27th November 2020 (ELC, Machakos)· [2021] KEELC 2070 (KLR)

Roman Mutuku Kisini & 2 others v Mary Mwikali Muasya & 3 others [2021] KEELC 2070 (KLR)

Environment and Land Court
30 July 2021
OAO. A. Angote
1,741 words in judgment
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The bottom line

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Kenya's Environment and Land Court struck out preliminary objections because proving res judicata requires examining facts, which cannot be done on a preliminary objection.

What this practically means

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Executive summary

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The 1st to 3rd Defendants filed two Notices of Preliminary Objection dated 20th January 2021 against the Plaintiffs' Notice of Motion dated 27th November 2020, arguing that the suit - which sought declarations that the Minister's decision in Appeal Case No. 345 of 2008 over L.R. Nos. Machakos/Nguluni/2803, 2804 and 2805 was a nullity - was res judicata under Section 7 of the Civil Procedure Act and offended the finality provision in Section 29(1)(b) of the Land Adjudication Act. The Defendants contended that ownership of the land had been determined by the Land Adjudication Officer and on appeal by the Minister, whose decision is final, and that the Plaintiffs should have pursued judicial review. The Plaintiffs countered that no appeal to the Minister lay within the statutory 60 days, that the appellant in the Minister's appeal was neither an objector nor a party to the suit, and that the Minister's out-of-time admission of the appeal was a nullity ab initio, giving them a new cause of action. Angote J adopted the Mukisa Biscuit definition of a preliminary objection as a pure point of law. Holding that a determination of res judicata would require examination of the Minister's proceedings, which could only be brought before the court by application rather than preliminary objection, the court declined to uphold the objections and struck out both Notices with costs on 30th July 2021.

Key legal issues

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01

Whether the suit is res judicata under Section 7 of the Civil Procedure Act

Holding

The objection failed because determining res judicata requires examination of the Minister's proceedings, which are matters of fact inappropriate for a preliminary objection

Reasoning

The court applied the Mukisa Biscuit definition: a preliminary objection must be a pure point of law on assumed pleaded facts. To decide res judicata the court would have to consider the proceedings before the Minister and the decision therein, which could only be brought before the court by an application, not a preliminary objection. The objections were therefore struck out.

p. 3
02

Whether the suit offends the finality provision in Section 29(1)(b) of the Land Adjudication Act

Holding

The court accepted the principle (from Dume Deri Mumbo and Nicholas Njeru) that challenges to a Minister's adjudication decision lie in judicial review or on a new cause of action, but declined to uphold the objection at this preliminary stage

Reasoning

The court endorsed the authorities holding that ordinary suits cannot re-open disputes conclusively determined under the Land Adjudication Act. However, since the Defendants' objections were framed as preliminary objections and facts would need to be ascertained, the objection could not succeed on the pleadings alone.

p. 3

Legal principles established

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  • A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot succeed if any fact has to be ascertained
  • A court may only interfere with decisions of bodies established under the Land Adjudication Act by way of judicial review or where a new cause of action is introduced after the Minister's proceedings have closed

Court orders

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  1. 1.The Notices of Preliminary Objection dated 20th January, 2021 are struck out with costs

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Land Adjudication ActSections 26, 29(1) and 29(1)(b)

Cases cited (7)

  • Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd
    (1969) EA 696
  • John Masiantet Saeni vs. Daniel Aramat Lolungiro & 3 Others
    eKLR
  • Lepore Ole Maito vs. Letwat Kortom & 2 Others
    [2016] eKLR
  • Nicholas Njeru vs. The Hon. Attorney General
    (2013) eKLR
  • Dume Deri Mumbo & 19 Others (Suing on their behalf and on behalf of Wandarari Clan vs. Cabinet Secretary of Lands Housing & Urban Development & 6 Others
    [2016] eKLR
  • Jamin Kiombe Lidodo vs. Emily Jerono Kiomber & Another
    [2013] eKLR
  • Republic vs. District Commissioner, Keiyo & 2 Others; Peter Kiprono Chirchir (Interested Party) and Ex parte Robert Kipsigirio Lotiang
    [2018] eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over the suit (Plaint seeking declaratory orders under the Land Adjudication Act and Civil Procedure Act framework); not expressly stated in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Roman Mutuku Kisini & 2 others v Mary Mwikali Muasya & 3 others [2021] KEELC 2070 (KLR)", Case Analysis (2021). Preliminary Objection in suit filed by Plaint dated 27th November 2020 (ELC, Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2070/eng@2021-07-30

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