Nzioki v Lukenya Ranching & Farming Co-operative Society & 3 others (Environment & Land Case E24 of 2020) [2022] KEELC 2676 (KLR)
The bottom line
#Kenya's Environment and Land Court in Machakos ruled that res judicata and sub judice claims need evidence, so they cannot be raised through a preliminary objection.
What this practically means
#Executive summary
#Key legal issues
#Whether a preliminary objection premised on res judicata and sub judice is maintainable
It is not maintainable; such issues require evidence and cannot be raised by preliminary objection.
The court applied the Mukisa Biscuits test that a preliminary objection must be a pure point of law. The 3rd Defendant's objection relied on factual matters - Tribunal orders of 3rd November 2008 and a consent of 16th February 2009 - which require probing of evidence. Following Kandara Residence Association and Khaemba, such issues must be raised by Notice of Motion. The objection also failed precision, only invoking Section 6 of the Civil Procedure Act in submissions.
Whether the preliminary objection properly pleaded lack of jurisdiction
It did not; the objection did not state which law the suit offended or how the sameness of subject matter negated jurisdiction.
The court noted that the grounds merely asserted duplication and lack of jurisdiction without identifying the offending law. Section 6 of the Civil Procedure Act was only mentioned in submissions, not in the objection itself, and the objection did not mention any application although submissions sought to strike out an application as res judicata.
Legal principles established
#- A preliminary objection must be based purely on a point of law and cannot be anchored on disputed facts.
- Questions of res judicata and sub judice require proof by evidence and cannot be determined by way of preliminary objection; they ought to be raised by Notice of Motion.
- A preliminary objection lacking precision or stating the law offended is invalid.
Court orders
#- 1.The preliminary objection dated 5th March 2021 is dismissed with costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court; no specific constitutional or statutory provision invoked in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nzioki v Lukenya Ranching & Farming Co-operative Society & 3 others (Environment & Land Case E24 of 2020) [2022] KEELC 2676 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2676/eng@2022-05-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.