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ELCDismissed(not stated in judgment)· [2022] KEELC 350 (KLR)

Andrew Omboto & 3 others v Board Of Trustees,National Social Security Fund & 6 others [2022] KEELC 350 (KLR)

Environment and Land Court
21 April 2022
4,056 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that losing an interim application does not end your lawsuit—the main case can still go to full trial.

What this practically means

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Executive summary

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The 4th Defendant moved the Environment and Land Court by a Notice of Motion dated 10th September 2020 seeking dismissal or discontinuation of the Plaintiffs' suit on the ground that a Ruling delivered on 12th March 2020, dismissing the Plaintiffs' contemporaneous interlocutory application, had collapsed the substratum of the suit, rendered the claims res judicata, and left the suit an abuse of court process. The Plaintiffs opposed, contending that the Ruling only addressed jurisdiction over physical planning and environmental matters, preserved the core dispute over the validity of the lease and sublease of the sectional property, and that an interlocutory application cannot conclusively determine a suit. The court framed a sole issue: whether the Ruling of 12th March 2020 collapsed the substratum of the suit and rendered it res judicata. Relying on Uhuru Highway Development Ltd v Central Bank of Kenya and Paul Tirimba Machogu v Rachel Moraa Mochama, the court held that interlocutory findings do not bind the trial court, since the earlier Ruling only determined the existence of a prima facie case. On res judicata, invoking Section 7 of the Civil Procedure Act and State of Maharashtra v National Construction Company, the court found no final determination existed. The sub judice plea failed because the 4th Defendant raised it only in submissions and produced no evidence of pending proceedings, and the abuse-of-process argument fell with the substratum claim. The application was dismissed with costs to the Plaintiffs, allowing the suit to proceed to full hearing.

Key legal issues

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01

Whether the Ruling of 12th March 2020 dismissing the Plaintiffs' interlocutory application collapsed the substratum of the suit

Holding

It did not; the Ruling determined only the question of a prima facie case for injunctive relief and cannot bind the trial court

Reasoning

The court reasoned that in dismissing the earlier application it was solely determining whether the Plaintiffs had established a prima facie case for interim injunctive orders. Interlocutory decisions enter the merits only to the degree necessary and are expressly non-binding on the trial court, relying on Uhuru Highway Development Ltd v Central Bank of Kenya and Paul Tirimba Machogu v Rachel Moraa Mochama. Failure to appeal or amend does not extinguish the suit.

p. 4
02

Whether the suit is res judicata

Holding

No; there is no former suit and no final determination of the matter

Reasoning

Guided by Section 7 of the Civil Procedure Act, the court found that the interlocutory Ruling was not a final determination. Citing State of Maharashtra v National Construction Company and Kamunye v Pioneer General Assurance Society, res judicata bars only matters heard and finally decided by a competent court. The suit had not been heard and determined conclusively.

p. 4
03

Whether the sub judice doctrine bars the hearing of the suit

Holding

Not established; the Applicant produced no evidence of pending proceedings

Reasoning

Although the sub judice bar is in Section 6 of the Civil Procedure Act, a party invoking it must place evidence of pending proceedings before the court. The 4th Defendant relied only on observations in the earlier Ruling, which was not determining sub judice, and did not produce the pleadings in the alleged parallel matters. Further, the issue was raised only in submissions, not in the Motion or supporting affidavit.

p. 5
04

Whether the suit is an abuse of the court process

Holding

No; the abuse contention rested entirely on the failed substratum argument

Reasoning

The court accepted it has inherent jurisdiction to protect itself from abuse, but since the Ruling did not extinguish the suit and no positive determinations were made on res judicata and sub judice, the suit could not be characterised as an abuse of process. The court adopted the definition in Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd.

p. 5

Legal principles established

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  • Findings made at the interlocutory stage do not bind the trial court in its final determination
  • Res judicata applies only where the matter directly and substantially in issue has been heard and finally decided
  • Submissions are not evidence; new issues raised only in submissions are best ignored
  • A party pleading sub judice must place evidence of the pending suit before the court

Court orders

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  1. 1.The Application dated 10th September, 2020 is dismissed with costs to the Plaintiffs

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure ActSection 6
  • Physical Planning Act (now repealed)mechanism for complaints to the Liaison Committee
  • Sectional Properties Act of 1987null

Cases cited (16)

  • John Florence Maritime Services Limited & another vs Cabinet Secretary for Transport and Infrastructure & 3 others
    [2015] eKLR
  • Independent Electoral & Boundaries Commission vs Maina Kiai & 5 Others
    [2017] eKLR
  • Republic vs Commissioner General, Kenya Revenue Authority Ex-Parte Mount Kenya Bottlers Ltd & another
    [2017] eKLR
  • Stephen Somek Takwenyi & Another vs David Mbuthia Githare & 2 Others
    Nairobi (Milimani) HCCC No. 363 of 2009
  • Jane Kamene Mulandi & 7 others vs Gerald Mutunga Mutyetumo
    [2020] eKLR
  • Tamurei Kobilo Chepkaitany vs Chepkaitany Kaimugul
    [2021] eKLR
  • Gladys Murhoni Kibui vs Geoffrey Ngatia
    [2021] eKLR
  • Sukhdev Singh Laly vs Gerald Richard Kafeero & Anor
    [2012] eKLR
  • Uhuru Highway Development Limited v Central Bank of Kenya & 2 others
    [1996] eKLR
  • Paul Tirimba Machogu vs Rachel Moraa Mochama
    [2015] eKLR
  • State of Maharashtra and Another vs National Construction Company, Bombay
    Supreme Court Civil Appeal No 1497 of 1996
  • Kamunye & others vs Pioneer General Assurance Society Ltd
    [1971] E.A. 263
  • Republic vs Chairman Public Procurement Administrative Review Board & another Ex-Parte Zapkass Consulting and Training Limited & another
    [2014] eKLR
  • Maureen Waithera Mwenje & another vs David Kinyanjui Njenga & 2 others
    [2021] eKLR
  • Muchanga Investments Ltd vs Safaris Unlimited (Africa) Ltd and 2 Others
    [2009] eKLR
  • Legal Advice Centre aka Kituo Cha Sheria vs Communication Authority of Kenya
    [2015] eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes on title, ownership and management of sectional property (Article 162(2)(b) jurisdiction; no specific provision cited in judgment)

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, "Andrew Omboto & 3 others v Board Of Trustees,National Social Security Fund & 6 others [2022] KEELC 350 (KLR)", Case Analysis (2022). (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/350/eng@2022-04-21

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