Hussein v Odhiambo & 2 others (Environment & Land Miscellaneous Case E016 of 2021) [2022] KEELC 2597 (KLR)
The bottom line
#The Environment and Land Court in Embu confirmed that res judicata and sub judice objections fail when the parties in the two suits are not the same.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection met the Mukisa Biscuit threshold
Grounds 2 and 3 of the objection (frivolity and dismissal) were not points of law and failed the test; only ground one (Sections 6 and 7) survived for determination
The court applied the Mukisa Biscuit definition and the Supreme Court's Aviation & Allied Workers Union elaboration that a preliminary objection may only be raised on a pure question of law with no contest as to facts. Grounds seeking findings of frivolity or dismissal would require calling evidence and examining facts, and therefore could not be raised as preliminary objections.
Whether the application was sub judice under Section 6 of the Civil Procedure Act
The suit was not sub judice because the parties in ELC No. 61 of 2011 are different from the respondents in this suit, and the status of that earlier suit (whose plaintiff is deceased) was unknown
Section 6 requires suits between the same parties or those claiming under them. The earlier ELC No. 61 of 2011 was between Mohamed Ali Abdalla, Mary Njeri Mohamed and the applicant, whereas this suit is against the respondents, who are strangers to that litigation. The court also noted it was not informed whether the earlier suit was ongoing or had abated upon the plaintiff's death, so it could not be said to be pending.
Whether the application was res judicata under Section 7 of the Civil Procedure Act
The res judicata claim failed on identity of parties and on finality, as the ruling in ELC No. 61 of 2011 did not determine the suit to finality but transferred it to Kerugoya
Applying the Bernard Mugo Ndegwa test, the court found the parties in the two suits were not the same, defeating res judicata. Even assuming finality were considered, the ruling annexed did not conclusively determine the earlier suit; it transferred the suit to Kerugoya, so it could not support a plea of res judicata.
Whether the application was frivolous, misconceived and an abuse of process
This ground was not determined on its merits as it did not qualify as a point of law for a preliminary objection
The court held that a claim of frivolity requires the court to make findings of fact and call evidence, and so cannot be entertained as a preliminary objection ground. It formed no part of the disposition beyond being excluded from the objection.
Legal principles established
#- A preliminary objection must be a pure point of law, not one requiring ascertainment of facts or evidence
- The sub judice rule requires suits between the same parties or their representatives over the same subject matter
- Res judicata requires identity of parties, among other elements including finality of the previous decision
Court orders
#- 1.The preliminary objection is dismissed with costs to the applicant.
- Jurisdiction invoked
- Original jurisdiction to determine a preliminary objection against an application under the Civil Procedure Act (Sections 6 and 7)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hussein v Odhiambo & 2 others (Environment & Land Miscellaneous Case E016 of 2021) [2022] KEELC 2597 (KLR)", Case Analysis (2022). Miscellaneous Application (application dated 3.11.2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2597/eng@2022-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.