Washington Kibatha Thuo & another v Daniel Muiruri Kihara & 3 othrers [2022] KEELC 528 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled you cannot use a preliminary objection to claim a case is res judicata; you must file a formal motion with supporting documents.
What this practically means
#Executive summary
#Key legal issues
#Whether res judicata can be determined by way of preliminary objection
It cannot; determining res judicata requires evidence to establish the identity of parties, the title under which they litigated and the finality of the former decision, so the objection was improperly raised
The court applied Mukisa Biscuit: a preliminary objection must be a pure point of law on assumed pleaded facts. Establishing the elements of res judicata under Section 7 of the Civil Procedure Act requires affidavit evidence and comparison of pleadings in the former suit. Hence res judicata and the abuse-of-process limb should be raised by notice of motion, not a preliminary objection.
Whether the suit between the Plaintiffs and the Defendants' fathers' estates is res judicata given KIAMBU SRMCC No 1312 of 1993
Not determined; the court did not reach the merits of the res judicata claim, striking out the objection as improperly procedurally raised
Although the Defendants asserted that the prior suit between the parties' fathers was heard and dismissed on 14/7/2015 with no appeal, the court held that the proper forum to test this was a notice of motion supported by annexed pleadings, not a preliminary objection.
Legal principles established
#- A preliminary objection must raise a pure point of law, argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained or judicial discretion exercised
- Res judicata cannot be raised by way of preliminary objection because establishing it requires examination of evidence; it should be raised by notice of motion with pleadings annexed
- Establishing res judicata requires proof that the matter was directly and substantially in issue in a former suit between the same parties or their privies, litigating under the same title, heard and finally determined by a competent court
Court orders
#- 1.The preliminary objection is struck out with costs payable by the 1st and 2nd Defendants
- Jurisdiction invoked
- Not expressly stated; the objection was determined under Section 7 of the Civil Procedure Act on the court's first-instance jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Washington Kibatha Thuo & another v Daniel Muiruri Kihara & 3 othrers [2022] KEELC 528 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/528/eng@2022-03-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.