Republic v District Criminal Investigation Officer Rongo & 3 others Ex parte Applicant; Philip Odero Makabongo (Interested Party) [2021] KEELC 2324 (KLR)
The bottom line
#Kenya's High Court dismissed both preliminary objections in a land judicial review, confirming procedural technicalities won't derail hearings on the merits.
What this practically means
#Executive summary
#Key legal issues
#Res judicata
The preliminary objection on res judicata fails because the respondents were not parties to the prior proceedings and the matters raised are contested facts for trial
The court applied Section 7 of the Civil Procedure Act and the Black's Law Dictionary definition. The previous Tribunal case, Kisii Succession Cause No. 13 of 1997 and Misc. Application No. 249 of 2012 did not involve the respondents, so the identity-of-parties element was missing. The objection also rested on contested factual details, contrary to the Mukisa Biscuits/Oraro v Mbaja threshold.
Validity of replying affidavit annexures under oath rules
Annexures marked but not sealed do not warrant striking out the affidavit; the defect is curable under Article 159(2)(d) and (e) and the overriding objective
The court noted the attachments were marked but not sealed, but applied Section 19(1) of the Environment and Land Court Act, Sections 1A and 1B and 3A of the Civil Procedure Act, and Articles 48, 50(1) and 159(2)(b) of the Constitution, holding that the affidavit retained its 'breath of life' and that parties are entitled to a hearing on the merits.
Threshold for a preliminary objection
A preliminary objection must be a pure point of law; both objections raised matters to be ascertained at trial and so fail
Following Mukisa Biscuits and Oraro v Mbaja, the court held that a preliminary objection must not be blurred by contested factual details. Both objections here required ascertainment of ownership and factual matters, and therefore lacked merit. The JR application was to be heard on its merits.
Legal principles established
#- A preliminary objection must consist of a pure point of law which is not blurred by factual details liable to be contested; issues requiring ascertainment of fact must be left to trial
- Res judicata requires identity of parties; proceedings between different parties do not meet the test under Section 7 of the Civil Procedure Act
- Procedural defects in affidavits, such as unsealed annexures, are curable under the overriding objective and Article 159(2)(d) of the Constitution
- Litigation must come to an end as a matter of public policy
Court orders
#- 1.The 1st preliminary objection (interested party, dated 14th May 2018) is disallowed
- 2.The 2nd preliminary objection (ex-parte applicant, dated 18th May 2018) is disallowed
- 3.Both preliminary objections dismissed with costs in the cause
- 4.The JR application to proceed to hearing on its merits
- Jurisdiction invoked
- Order 53 of the Civil Procedure Rules, 2010 (judicial review); judicial review relief under Article 23(3)(f) of the Constitution of Kenya, 2010; Environment and Land Court Act No. 19 of 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v District Criminal Investigation Officer Rongo & 3 others Ex parte Applicant; Philip Odero Makabongo (Interested Party) [2021] KEELC 2324 (KLR)", Case Analysis (2021). Judicial Review Application (Notice of Motion dated 25th April 2018), Migori High Court. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2324/eng@2021-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.