Hasainiz Investment Limited v County Government of Mombasa [2022] KEELC 629 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection met the threshold of a pure point of law
The objection failed the Mukisa Biscuits threshold because determining res judicata would require examining facts and evidence in previous pleadings.
Relying on Mukisa Biscuits and the decision in George Kamau Kimani, the court held that res judicata is best raised by notice of motion with pleadings annexed. The Respondents failed to annex pleadings of the cited suits, so the court would need to ascertain facts, taking the matter outside a pure point of law.
Whether the Petition offended Section 7 of the Civil Procedure Act (res judicata)
The court could not find the Petition res judicata without examining the proceedings in the previous suits; the elements of res judicata are conjunctive and were not shown to be satisfied.
Setting out Section 7 and the IEBC v Maina Kiai elements, the court observed that the Respondents cited four previous suits but annexed none of the pleadings. Determining whether parties, title and issues were the same required examination of those proceedings, which cannot be done on a preliminary objection.
Costs of the preliminary objection
Costs were awarded to the Petitioners as the objection was disallowed.
Having found the objection unmeritorious, the court exercised its discretion on costs in favour of the Petitioners, ordering the Respondents to bear the costs of the Notice of Preliminary Objection.
Legal principles established
#- Res judicata under Section 7 of the Civil Procedure Act cannot be sustained by way of a preliminary objection where the court would need to examine pleadings and ascertain facts from previous suits.
- A proper preliminary objection must be a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised if any fact has to be ascertained.
Court orders
#- 1.The Notice of Preliminary Objection dated 29th November, 2021 by the Respondents be and is hereby dismissed with Costs
- 2.The Petition dated 24th May, 2021 and filed in court on 26th May, 2021 be heard and determined within the next ninety (90) days from the date of the ruling, to be heard on 8th June, 2022 by both adducing of viva voce evidence and affidavits
- 3.The Respondents to bear the costs of the Notice of Preliminary Objection to be made to the Petitioners
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over the Petition and the Notice of Preliminary Objection dated 29th November 2021
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kioko v Attorney General (Civil Appeal E017 of 2022) [2026] KECA 500 (KLR)[2026] KECA 500 (KLR)13 Mar 2026
- Munyambu v Abubakar & another (Environment and Land Appeal E017 of 2023) [2024] KEELC 753 (KLR)[2024] KEELC 753 (KLR)13 Feb 2024
Cite this brief
#Cite this brief
Caselaw, "Hasainiz Investment Limited v County Government of Mombasa [2022] KEELC 629 (KLR)", Case Analysis (2022). Petition dated 24th May, 2021 (filed 26th May, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/629/eng@2022-03-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.