Magdalene Mwombui Francis (Petitioning as a legal representative of M’Thirinja M’Imathiu Tharane (Deceased) v Land Adjudication & Settlement Officer, Karama, Director of Land Adjudication & Attorney General; Firdinard Kaiyera Rithuty (Interested Party) (? 19 of 2021) [2022] KEELC 666 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that a case dismissed for want of prosecution cannot block a fresh petition as res judicata.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection meets the Mukisa Biscuits threshold
It does not, because establishing res judicata would require the court to ascertain facts not before it
The judgment adopts the Mukisa Biscuits definition of a preliminary objection as a pure point of law on admitted facts, and follows Oraro v Mbaja that where facts must be established the objection falls below the threshold. Here the pleadings in the prior judicial review were not attached, so the court could not compare parties, subject matter and issues without ascertaining facts.
Whether the petition is res judicata following dismissal of Meru ELC Judicial Review No. 17 of 2019 for want of prosecution
It is not, since the dismissal was not a determination on the merits
Section 7 of the Civil Procedure Act requires a former suit decided on merits between the same parties. Both parties agreed the judicial review was dismissed for want of prosecution, i.e. technically knocked out and not determined on merits or to finality, so the res judicata elements were not conjunctively satisfied.
Whether filing a fresh petition instead of seeking reinstatement amounts to abuse of court process
It does not; establishing abuse would be a matter of discretion and none was demonstrated
The interested party argued the correct remedy was reinstatement under Order 12 Rules 3 and 7. The court noted this second ground was not in the preliminary objection as filed, that no abuse was demonstrated, that showing abuse is an exercise of discretion, and that no prejudice was occasioned by the non-revival of the judicial review, the dismissal having been sought by the Attorney General.
Legal principles established
#- A dismissal for want of prosecution is not a determination on the merits and does not ground res judicata under Section 7 of the Civil Procedure Act
- A preliminary objection fails where facts have to be ascertained or where the point sought is the exercise of the court's discretion
- Procedural rules cannot be used to stifle a party's constitutional right of access to justice
Court orders
#- 1.The preliminary objection dated 5.11.2021 is dismissed
- 2.Interested party to pay costs of the preliminary objection
- 3.Parties to file responses within 45 days and take a date for directions
- Jurisdiction invoked
- Articles 23 and 165 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Magdalene Mwombui Francis (Petitioning as a legal representative of M’Thirinja M’Imathiu Tharane (Deceased) v Land Adjudication & Settlement Officer, Karama, Director of Land Adjudication & Attorney General; Firdinard Kaiyera Rithuty (Interested Party) (? 19 of 2021) [2022] KEELC 666 (KLR)", Case Analysis (2022). Not stated in the judgment (petition dated 15.6.2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/666/eng@2022-03-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.