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ELCDismissedNot stated in the judgment extract (ELC suit filed 13/11/2020)· [2021] KEELC 4368 (KLR)

Samson Ndambo Ngugi v Anthony Muchina Kamau & another [2021] KEELC 4368 (KLR)

Environment and Land Court
11 February 2021
JKJ G Kemei
2,398 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 confirmed that res judicata objections require evidence and cannot end a land trust case early.

What this practically means

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Executive summary

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The Plaintiff filed suit on 13/11/2020 claiming that the suit land LOC4/GAKARARA/1156/23 (formerly of the late Samson Ngugi Kamau) is encumbered by a customary trust in favour of himself and his family, and sought cancellation of the title registered in the 2nd Defendant's name. Simultaneously he sought restraining orders against alienation. The Defendants filed a Preliminary Objection contending that the claim was defective, incompetent and an abuse of process, having been litigated in numerous prior proceedings including High Court Succession Causes No. 605 of 2002, 3711 of 2004 and 46 of 2017, Civil Appeal No. 80 of 2005, and various subordinate court suits including SRMCC No. 173 of 2013 at Kandara. The Court framed the key issue as whether the Preliminary Objection was a pure point of law. Applying the Mukisa Biscuits test, Justice Kemei held that res judicata and sub judice require probing of evidence and cannot be raised through preliminary objections. On the merits of the objection, the Court found that the prior succession causes concerned revocation of grants, not the customary trust claim, and that the High Court lacked jurisdiction over customary trust disputes, which fall to the ELC under Article 162(2) and Section 13 of the ELC Act. No evidence showed SRMCC No. 173 of 2013 had been heard and determined to finality. The Preliminary Objection was dismissed with costs to the Plaintiffs. The Court directed the parties to address whether the current suit is sub judice given the pending SRMCC No. 173 of 2013 at the next hearing.

Key legal issues

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01

Whether the Preliminary Objection is a pure point of law

Holding

The Preliminary Objection is not a pure point of law because it is blurred by factual details requiring examination of evidence, notably whether SRMCC No 173 of 2013 was heard and determined to finality.

Reasoning

Applying the Mukisa Biscuits test, a preliminary objection must be a matter of law capable of disposing of the suit, not blurred by factual details or requiring exercise of discretion. Res judicata and sub judice require probing of evidence. Here the Court would need to peruse the earlier lower court file to determine finality, so the objection cannot be sustained as pleaded.

p. 3
02

Whether the suit is res judicata

Holding

The suit is not res judicata because the succession causes previously litigated concerned revocation of grants, not the customary trust claim, and no evidence showed SRMCC No 173 of 2013 was heard and determined.

Reasoning

The requirements of Section 7 of the Civil Procedure Act were not satisfied: the trust issue was never determined by a competent court to finality. The succession matters revolved around revocation and counter-revocation of grants; Justice Koome had advised parties to pursue trust claims in a civil suit. The High Court lacked jurisdiction over customary trust disputes in any event.

p. 3

Legal principles established

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  • Matters of sub judice and res judicata ought not to be raised through Preliminary Objections as such matters necessarily involve investigation of facts.
  • The Environment and Land Court has jurisdiction under Article 162(2) of the Constitution and Section 13 of the ELC Act to determine matters relating to customary trust; succession courts should not determine such disputes.

Court orders

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  1. 1.The Preliminary Objection is dismissed with costs to the Plaintiffs

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Law of Succession ActCap 160
  • Environment and Land Court ActSection 13
  • Constitution of KenyaArticle 162(2)
  • Constitution of KenyaArticle 27(1) and (2)
  • Constitution of KenyaArticle 50

Cases cited (6)

  • Subramanian Swamy v State of T.N
    AIR 2015 SC 460
  • George W M Omondi & another v National Bank of Kenya Ltd & 2 others
    [2001] eKLR
  • Mwangi Njangu v Meshack Mbogo Wambugu
  • Elijah Gachoki and Another v Stanley Mugo Kariuki & Another
    Kerugoya H.C. Succession Cause No. 90/2013
  • Mukisa Biscuits Manufacturing Company Ltd v West End Distributors Ltd
    [1969] EA 696
  • Henry Wanyama Khaemba v Standard Chartered Bank & Another
    (2014) eKLR
Jurisdiction invoked
Article 162(2) of the Constitution read together with Section 13 of the Environment and Land Court Act

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, "Samson Ndambo Ngugi v Anthony Muchina Kamau & another [2021] KEELC 4368 (KLR)", Case Analysis (2021). Not stated in the judgment extract (ELC suit filed 13/11/2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4368/eng@2021-02-11

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