Irene Wangui Kuria & another v George Njoroge Njau & 3 others [2021] KEELC 2579 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the preliminary objection qualifies under the Mukisa Biscuit test
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.
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.
Whether the ELC has jurisdiction over a suit intertwined with succession issues
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.
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.
Legal principles established
#- 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
#- 1.The Preliminary Objection dated 1st July 2020 is dismissed entirely with no orders as to costs as it was undefended
- 2.The matter to be set down for hearing and determined on merit
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.