Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedELC Case No. 45 of 2019· [2022] KEELC 522 (KLR)

Dhamini Limited v Tanad Transporters Limited & another [2022] KEELC 522 (KLR)

Environment and Land Court
14 March 2022
1,762 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court ruled that a suit dismissed for non-attendance was never properly decided, so it cannot block a fresh case.

What this practically means

#

Executive summary

#
The 1st and 2nd Defendants raised a Notice of Preliminary Objection dated 17/12/2021 contending that the suit (ELC Case No. 45 of 2019) was res judicata, having been the subject of Case No. 511 of 2008 (Dhamini Limited v Tanad Transporters & Musa Hassan), which was dismissed for non-attendance on 23/3/2017 and again after a reinstated suit failed to comply with conditions, culminating in dismissal on 6/12/2018. The objection was canvassed by written submissions; only the Defendants filed. The court first confirmed the objection met the Mukisa Biscuit test as a pure point of law. It then analysed Section 7 of the Civil Procedure Act and divergent authorities: Salem Ahmed Zaidi and Thomas K. Sambu treated dismissal for non-attendance as a final judgment triggering res judicata, whereas Michael Bett Sibor and Caneland v Delphis Bank required the issues to have been heard and decided on merits. Adopting the latter line, Mogeni J held that a suit dismissed for non-attendance is not 'heard and finally decided'; such dismissal is a procedural technical knockout, and treating it as res judicata would conflict with Article 50(1) and the anti-technicality provisions of Article 159(2)(d) and Section 19(1) of the Environment and Land Court Act. A party whose suit is dismissed for want of prosecution may either seek reinstatement without unreasonable delay or file a fresh suit subject to limitation. The former suit was found not heard and determined on merits; the preliminary objection was dismissed entirely with costs.

Key legal issues

#
01

Whether res judicata applies to a suit dismissed for non-attendance or want of prosecution

Holding

No. Section 7 requires that the former suit's issues were heard and finally decided; a dismissal for non-attendance is a technical knockout decided on a procedural technicality, not on merits.

Reasoning

The court reviewed divergent authorities: Salem Ahmed Zaidi and Thomas K. Sambu held such dismissals operate as res judicata, while Michael Bett Sibor and Caneland held the issues must be heard and decided on merits. The court preferred the latter view, holding that a suit dismissed for non-attendance is not 'heard and finally decided' within Section 7 and that upholding res judicata on such basis would offend Articles 50(1) and 159(2)(d) and Section 19(1) of the ELC Act.

p. 3
02

Whether the objection is a true preliminary objection

Holding

Yes - it raises a pure point of law (res judicata) and meets the Mukisa Biscuit test.

Reasoning

Applying Mukisa Biscuit and Oraro v Mbaja, the court found the objection raised a pure point of law without need to ascertain facts or exercise discretion, since the dismissal of the former suit was not in dispute.

p. 2

Legal principles established

#
  • A suit dismissed for non-attendance or want of prosecution is not 'heard and finally decided' on merits and therefore cannot ground a plea of res judicata under Section 7 of the Civil Procedure Act.

Court orders

#
  1. 1.The preliminary objection is dismissed entirely with costs

Authorities

#

Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure RulesOrder 17
  • Constitution of KenyaArticle 50(1)
  • Constitution of KenyaArticle 159(2)(d)
  • Environment and Land Court ActSection 19(1)

Cases cited (9)

  • Mukisa Biscuit Manufacturing Co Ltd –V- West End Distributors Ltd
    1969 E.A 696
  • Oraro .V. Mbaja
    2005 eKLR
  • Avtar Singh Bhamra & Another Vs Oriental Commercial Bank
    Kisumu HCCC No.53 of 2004
  • Albert Magu Musa v Samuel Kagundu Muchira & 3 others
    [2017] eKLR
  • Salem Ahmed Zaidi -vs- Faud Humeidan
    1960 E.A 92
  • Thomas K. Sambu -vs- Paul K. Chepkwony
    2018 eKLR
  • Michael Bett Sibor .V. Jackson Koech
    C.A Civil Appeal No 83 OF 2016 [2019] eKLR
  • Caneland Ltd & Others .V. Delphis Bank Ltd
    C.A. Civil Appeal No 20 of 2000
  • Wensley Barasa v Immaculate Awino Abongo & another
    [2020] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution read with the Environment and Land Court Act (ELC original jurisdiction); court not expressly stated in the excerpt

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Dhamini Limited v Tanad Transporters Limited & another [2022] KEELC 522 (KLR)", Case Analysis (2022). ELC Case No. 45 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/522/eng@2022-03-14

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