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ELCOtherNot stated in the judgment· [2022] KEELC 528 (KLR)

Washington Kibatha Thuo & another v Daniel Muiruri Kihara & 3 othrers [2022] KEELC 528 (KLR)

Environment and Land Court
25 March 2022
1,291 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 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

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Executive summary

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The 1st and 2nd Defendants, legal representatives of the estate of Francis Kihara Muiruri, raised a preliminary objection dated 29/6/2021 seeking dismissal of the Plaintiffs' trespass suit over land parcel No 10874/58. They contended the suit was res judicata, having been litigated between the parties' fathers in KIAMBU SRMCC No 1312 of 1993, which was dismissed on 14/7/2015 with no appeal, and that the suit was otherwise misconceived and an abuse of process. The Plaintiffs did not oppose the objection, but the court examined it on the merits. Applying the Mukisa Biscuit tests, the court held that a preliminary objection must be a pure point of law argued on assumed pleaded facts, and cannot succeed where facts must be ascertained. Because establishing res judicata under Section 7 of the Civil Procedure Act requires evidence comparing the parties, the title under which they litigated, and the finality and competence of the former determination, the ground could not be raised by preliminary objection; the proper vehicle is a notice of motion with pleadings annexed. The court struck out the preliminary objection, leaving the substantive suit and the res judicata question undetermined, and awarded costs to the 1st and 2nd Defendants.

Key legal issues

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01

Whether res judicata can be determined by way of preliminary objection

Holding

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

Reasoning

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.

p. 2
02

Whether the suit between the Plaintiffs and the Defendants' fathers' estates is res judicata given KIAMBU SRMCC No 1312 of 1993

Holding

Not determined; the court did not reach the merits of the res judicata claim, striking out the objection as improperly procedurally raised

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The preliminary objection is struck out with costs payable by the 1st and 2nd Defendants

Authorities

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Legislation

  • Civil Procedure ActSection 7

Cases cited (1)

  • Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd
    [1969] EA 696
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

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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, "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.