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ELCDismissedELC No. 1235 of 2015· [2022] KEELC 1551 (KLR)

Nicholas Wahome Kimondo, Peter Marera Gikonyo & Jane Wachuka Mbugua (suing for and Behalf of the Bondeni Maili Saba Jua Kali Association) v Abigael Wambui & 3 others [2022] KEELC 1551 (KLR)

Environment and Land Court
10 February 2022
MOMogeni
1,355 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 confirmed that a case dismissed for lack of jurisdiction doesn't count as decided, so the land dispute could proceed.

What this practically means

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Executive summary

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The Environment and Land Court at Nairobi, per Mogeni J, determined a Preliminary Objection dated 28/04/2021 raised by the 4th Defendant, who contended that the Plaintiff's suit was res judicata, having been the subject of four previous proceedings, including Civil Suit No. 2984 of 2008, dismissed on 14/07/2015. The 4th Defendant sought dismissal of the suit with costs. The court first confirmed that the objection met the Mukisa Biscuit test as a pure point of law. The core question was whether res judicata under Section 7 of the Civil Procedure Act applies where the former suit was dismissed for want of both statutory and pecuniary jurisdiction. Relying on Caneland Ltd v Delphis Bank and Tee Gee Electrical & Plastic Co v Kenya Industrial Estates, the court held that res judicata applies only where the former matter was heard and determined on the merits. Since the ruling of 14/07/2015 struck out the earlier suit for want of substantive and pecuniary jurisdiction, it was not 'heard and finally decided' as Section 7 requires; dismissing a suit on jurisdictional grounds is a determination on a procedural technicality, inconsistent with Article 159(2)(d) of the Constitution and Section 19(1) of the Environment and Land Court Act. The court found that the present suit ELC No. 1235 of 2015 is not res judicata and dismissed the Preliminary Objection entirely with costs to the Plaintiff.

Key legal issues

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01

Whether res judicata applies to a suit previously dismissed for lack of statutory and pecuniary jurisdiction

Holding

Res judicata does not apply; the previous suit was not heard and determined on the merits but on a procedural technicality

Reasoning

Section 7 of the Civil Procedure Act requires that the matter in the former suit have been 'heard and finally decided' by a competent court. The ruling of 14/07/2015 struck out the earlier suit for want of substantive and pecuniary jurisdiction. Following Tee Gee Electrical and Caneland, dismissal for want of jurisdiction is not a determination on the merits, so the plea of res judicata fails.

p. 3
02

Whether the 4th Defendant's Preliminary Objection met the Mukisa Biscuit test

Holding

The objection raised a pure point of law and met the test, but it failed on the merits

Reasoning

The court applied the Mukisa Biscuit and Oraro v Mbaja tests, holding that a preliminary objection must be a pure point of law argued on the assumption that the other side's pleaded facts are correct. The assertion that the suit was res judicata is a legal issue, so the test was satisfied, though the objection was ultimately dismissed.

p. 2

Legal principles established

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  • Res judicata does not apply where the former suit was dismissed or struck out for want of jurisdiction, since Section 7 requires that the matter have been heard and finally decided

Court orders

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  1. 1.The 4th Defendant's Preliminary Objection dated 28/04/2021 is dismissed entirely with costs

Authorities

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Legislation

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

Cases cited (7)

  • Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd
    1969 E.A 696
  • Oraro v Mbaja
    2005 eKLR
  • Avtar Singh Bhamra & Another v Oriental Commercial Bank
    Kisumu HCCC No.53 of 2004
  • Albert Magu Musa v Samuel Kagundu Muchira & 3 others
    [2017] eKLR
  • Caneland Ltd & Others v Delphis Bank Ltd
    C.A. Civil Appeal No 20 of 2000
  • The Tee Gee Electrical & Plastic Co v Kenya Industrial Estates Ltd
    C.A Civil Appeal No 333 of 2001 [2005 2 KLR 97]
  • Wensley Barasa v Immaculate Awino Abongo & another
    [2020] eKLR
Jurisdiction invoked
Article 162(2)(b) Constitution / Environment and Land Court Act (first-instance suit before the ELC)

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, "Nicholas Wahome Kimondo, Peter Marera Gikonyo & Jane Wachuka Mbugua (suing for and Behalf of the Bondeni Maili Saba Jua Kali Association) v Abigael Wambui & 3 others [2022] KEELC 1551 (KLR)", Case Analysis (2022). ELC No. 1235 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1551/eng@2022-02-10

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