Walter Salonik Yenko (Suing as the legal representative of the Estate of Mpoke Ene Yenko) v Patita Ole Ntokoiwuan & 2 others [2021] KEELC 2225 (KLR)
The bottom line
#A Kenyan court dismissed a repeat land application word-for-word identical to one already refused, ruling it frivolous, an abuse of court process and barred by res judicata.
What this practically means
#Executive summary
#Key legal issues
#Whether the Notice of Preliminary Objection raised a point of law capable of disposing of the application
The objection was sustained; the application was frivolous and an abuse of the court process
The court applied the Mukisa Biscuit definition of a preliminary objection and the Dawkins test of frivolity. It compared the application dated 21st May 2020 with the earlier application dated 17th May 2019, found it a copy-paste of the latter, which had been dismissed for lack of merit, and noted that no new evidence or substance was introduced and that the issue of service had been articulated in the judgment of 23rd January 2019.
Whether the application was sub judice under Section 6 of the Civil Procedure Act
Sub judice did not apply
Section 6 bars the trial of a matter directly and substantially in issue in a previously instituted proceeding between the same parties pending in a court of similar jurisdiction. The court found no pending matters in any court of similar jurisdiction, so the sub judice limb of the preliminary objection failed, though the objection was nonetheless sustained on the abuse-of-process ground.
Whether the application was res judicata under Section 7 of the Civil Procedure Act
The issues had previously been raised word for word in the dismissed application dated 17th May 2019, warranting dismissal
The court set out Section 7 of the Civil Procedure Act with its explanations and applied it to the fact that the identical issues had been raised in the earlier application, which was dismissed for lack of merit. With no new evidence or material, the application lacked merit and was dismissed with costs to the Plaintiff, and the preliminary objection sustained.
Legal principles established
#- A preliminary objection consists of a point of law which has been pleaded or arises by clear implication out of the pleadings and which, if argued as a preliminary point, may dispose of the suit
- A matter is frivolous where it has no substance, is fanciful, involves trifling with the court, would waste the court's time, or is not capable of reasoned argument
- Section 6 of the Civil Procedure Act bars prosecution of parallel matters in courts of similar jurisdiction; sub judice does not apply where no such pending matter exists
Court orders
#- 1.The Notice of Motion dated 21st May, 2020 is dismissed
- 2.The dismissal is with costs to the Plaintiff
- 3.The Notice of Preliminary Objection dated 2nd July, 2020 is sustained
- Jurisdiction invoked
- Original civil jurisdiction over the suit (not expressly stated in the judgment); applications governed by the Civil Procedure Act (Cap 21) and the Civil Procedure Rules, Order 2 Rule 15
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Walter Salonik Yenko (Suing as the legal representative of the Estate of Mpoke Ene Yenko) v Patita Ole Ntokoiwuan & 2 others [2021] KEELC 2225 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2225/eng@2021-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.