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ELCOtherNot stated in judgment (Mombasa Environment and Land Court suit; see prior Mombasa H.C Matrimonial Cause No. 1 of 2008 (O.S) and Divorce Case No. 25 of 2004)· [2021] KEELC 4333 (KLR)

Margaret Wanjiku Henry v Road Touch Services Limited [2021] KEELC 4333 (KLR)

Environment and Land Court of Kenya
10 February 2021
MSMunyao Sila
2,014 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff sued the defendant company claiming a beneficial interest in land parcel Mombasa/Block XVII/734/MI on the basis of a constructive and/or resulting trust arising from her contribution to the purchase price from a joint account with her former husband, a director of the defendant. She sought declarations of beneficial interest and trust, partition, and a permanent injunction. The defendant raised a preliminary objection contending that the suit was res judicata, having been heard and determined in Mombasa H.C Matrimonial Cause No. 1 of 2008 (O.S), which was dismissed under Order 12 Rule 3 of the Civil Procedure Rules after non-compliance with conditional reinstatement orders. Supporting affidavits also suggested the claim was time barred. The court, per Munyao Sila J, applied the Mukisa Biscuit definition of a preliminary objection as a pure point of law, but held that the pleas of res judicata and limitation here required evidence and involved contested facts. The limitation plea had in any event been introduced only through submissions and not within the objection as drawn. As the plaintiff had no opportunity to file a replying affidavit, the court took the safer route: it struck out the preliminary objection but allowed the defendant to renew the issues, or any other striking-out grounds, by formal application to which the plaintiff could fully respond. No orders as to costs were made. The suit itself was neither struck out nor determined.

Key legal issues

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01

Whether res judicata and limitation can properly be determined by way of preliminary objection where affidavit evidence and contested facts are involved

Holding

No; the pleas require evidence and the plaintiff should be given an opportunity to respond through a replying affidavit, so a formal application is the appropriate vehicle

Reasoning

While res judicata and limitation are pure points of law capable of being preliminary objections, the court sometimes needs to invite evidence. Here the defendant relied on affidavit evidence and contested facts were apparent. Since the plaintiff was given no chance to file a replying affidavit, the court declined to determine the pleas as a preliminary objection and directed that they be raised by formal application instead.

p. 2
02

Whether a plea of limitation introduced only in submissions can be entertained as part of a preliminary objection

Holding

No; a second plea raised through submissions was not presented within the preliminary objection and could not be determined on it

Reasoning

The preliminary objection as drawn raised only res judicata. Counsel for the defendant introduced limitation through submissions, which the court treated as a second plea outside the objection. Together with the need for evidence on contested facts, this reinforced the decision to strike out the objection while permitting the defendant to renew the issues by formal application.

p. 2

Legal principles established

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  • A preliminary objection must be a pure point of law, as defined in Mukisa Biscuit vs West End Distributors
  • Where contested facts are needed to sustain a plea of res judicata or limitation, the safer course is to direct that the issues be canvassed through a formal application so the other party can respond

Court orders

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  1. 1.The preliminary objection is struck out
  2. 2.Leave granted to the defendant to revisit the issues of res judicata and limitation, or any other issue inviting striking out of the suit, by filing a formal application to which the plaintiff may fully respond
  3. 3.No orders as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 12 Rule 3

Cases cited (1)

  • Mukisa Biscuit vs West End Distributors
    (1969) EA 696
Jurisdiction invoked
Environment and Land Court jurisdiction over the suit property Mombasa/Block XVII/734/MI (no specific provision cited)

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, "Margaret Wanjiku Henry v Road Touch Services Limited [2021] KEELC 4333 (KLR)", Case Analysis (2021). Not stated in judgment (Mombasa Environment and Land Court suit; see prior Mombasa H.C Matrimonial Cause No. 1 of 2008 (O.S) and Divorce Case No. 25 of 2004). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4333/eng@2021-02-10

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