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ELCDismissedNot stated in the judgment· [2021] KEELC 2579 (KLR)

Irene Wangui Kuria & another v George Njoroge Njau & 3 others [2021] KEELC 2579 (KLR)

Environment and Land Court
15 July 2021
1,395 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed an attempt to block a land title dispute, ruling that res judicata claims need evidence and cannot be raised as a preliminary objection.

What this practically means

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Executive summary

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The 1st to 4th Defendants/Objectors filed a Notice of Preliminary Objection dated 1st July 2020 against the Plaintiffs' Plaint dated 23rd October 2018, on four grounds: that the court lacked jurisdiction as the gravamen of the claim was a succession claim; that the suit was res judicata having been determined in Kiambu Succession Cause No. 210 of 1990 and Nairobi ELC No. 110 of 2015; that the Plaint was an abuse of process, vexatious and frivolous; and that the orders sought were untenable. The objection was canvassed by written submissions by the Defendants' advocates; the Plaintiffs filed nothing despite service. The court framed one issue: whether the preliminary objection was merited. Applying the Mukisa Biscuit definition, the court held that determining res judicata, abuse of process and vexatiousness would require probing evidence and disputing facts, so those grounds could not be raised on a preliminary objection; res judicata should be raised by Notice of Motion with pleadings annexed, per George Kamau Kimani v County Government of Trans Nzoia. On jurisdiction, the court found the Plaint's prayers - declarations that consolidation and subdivision of Kiambaa/Kanunga parcels was illegal and orders cancelling derived titles - concerned title to land, within the ELC's jurisdiction under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act. Following Salome Wambui Njau, the court held the ELC and the Succession Court enjoy concurrent jurisdiction over succession disputes touching land. The preliminary objection was dismissed entirely with no orders as to costs, and the matter was set down for hearing on the merit.

Key legal issues

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01

Whether the preliminary objection qualifies under the Mukisa Biscuit test

Holding

The objection did not qualify because determining res judicata, abuse of process and vexatiousness would require probing evidence, so it was not a pure point of law.

Reasoning

The court applied the Mukisa Biscuit definition of a preliminary objection as a pure point of law. It found that ascertaining whether the suit was res judicata, an abuse of process, or vexatious and frivolous would require the court to ascertain and probe evidence since the parties dispute various issues. Such fact-sensitive enquiries cannot be resolved on a preliminary objection. Citing George Kamau Kimani v County Government of Trans Nzoia, the court held that res judicata should be raised by Notice of Motion with pleadings annexed.

p. 2
02

Whether the ELC has jurisdiction over a suit intertwined with succession issues

Holding

The ELC has jurisdiction because the dispute revolves around title to land under Article 162(2)(b) and Section 13 of the ELC Act, notwithstanding the succession elements.

Reasoning

The plaintiffs sought declarations that the consolidation and subdivision of land parcels was illegal and orders cancelling derived titles. Under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, the court has jurisdiction over disputes relating to title to land. Relying on Salome Wambui Njau, the court held the ELC and the Succession Court have concurrent jurisdiction over succession disputes touching on land, and where a suit is inextricably intertwined with succession issues relating to land, the ELC can entertain it.

p. 3

Legal principles established

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  • A preliminary objection consists of a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised where facts must be ascertained or judicial discretion exercised.
  • The issue of res judicata cannot be raised in a preliminary objection; the best way is by Notice of Motion with pleadings annexed.
  • In succession disputes touching on land, the ELC and the High Court as Succession Court have concurrent jurisdiction; which court is best suited depends on the circumstances of each case.

Court orders

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  1. 1.The Preliminary Objection dated 1st July 2020 is dismissed entirely with no orders as to costs as it was undefended
  2. 2.The matter to be set down for hearing and determined on merit

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Environment and Land Court ActSection 13(1) and (2)
  • Law of Succession ActSection 47
  • Constitution of KenyaArticle 162(2)(b)
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (7)

  • Peter Ndambu Nzikali v Onesmus Ndambu Musau
    (2015) eKLR
  • Re Estate of John Maraga Gwako
    (2007) eKLR
  • ETV v Attorney General & Another
    (2002) eKLR
  • Pangaea Holdings LLC & Another v Hacienda Development Ltd & 2 Others
    (2002) eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd
    (1969) EA 696
  • George Kamau Kimani & 4 Others vs County Government of Trans Nzoia
  • Salome Wambui Njau (suing as Administratrix of the Estate of Peter Kiguru Njuguna (Deceased) v Caroline Wangui Kiguru
    ELC (2013) eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, 2011

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, "Irene Wangui Kuria & another v George Njoroge Njau & 3 others [2021] KEELC 2579 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2579/eng@2021-07-15

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