Suchan Investments Limited v Minar Katherine Holroyd, Suneina Leonora Pulling & Laura Sushila Pulling (Being the co-administrators of the Estate of the Late Dipa Jashbai Pulling (Deceased)) (Environment & Land Case 1142 of 2016) [2022] KEELC 2889 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a Kshs. 42 million land compensation claim because the same issues had already been decided in an earlier case.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff's suit is res judicata to the judgment in ELC No. 200 of 2008
Yes; the issues of rent, mesne profits and general damages raised in the present suit were directly and substantially in issue and determined in the counterclaim in ELC No. 200 of 2008, which remains in force
Section 7 of the Civil Procedure Act bars a court from trying a matter directly and substantially in issue in a former suit between the same parties. Justice Okong'o's judgment in ELC 200 of 2008 considered and dismissed the same reliefs of rent, mesne profits and general damages in the counterclaim. The present court cannot sit in appeal over that decision, and entertaining the suit would render the prior judgment otiose.
Whether the claim for rent and mesne profits is statute-barred under Section 8 of the Limitation of Actions Act
No; the claim is not time-barred because it is continuous by virtue of co-ownership, was held in abeyance during the judicial review proceedings, and injunctions had been granted against the plaintiff
The court identified three reasons: the plaintiff's claim is continuous in being a co-owner of the suit property; the claim was held in abeyance while judicial review proceedings persisted, only being revived by the Court of Appeal decision in Civil Appeal No. 46 of 2012 which quashed the legal notice declaring the property a national monument; and injunctions had been granted against Suchan in ELC 200 of 2008.
Whether the preliminary objection is a pure point of law
The court proceeded on the settled principle from Mukisa Biscuit that a preliminary objection must be a pure question of law with no contest as to facts, and found the objection satisfied on the record
Relying on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors, as buttressed by the Supreme Court in Hassan Ali Joho and KNCHR v Attorney General, the court noted that a preliminary objection may only be raised on a pure question of law where the facts are deemed agreed as presented in the pleadings. The res judicata ground met this test on the face of the judgments on record.
Legal principles established
#- A preliminary objection may only be raised on a pure question of law, with the facts deemed agreed as presented in the pleadings
- The doctrine of res judicata has two dimensions: cause of action res judicata and issue res judicata
- A co-owner's claim for rent and mesne profits against fellow co-owners in continuous joint possession is not extinguished by limitation while the co-ownership persists and proceedings remained pending
Court orders
#- 1.The suit is struck out as res judicata to ELC No. 200 of 2008
- 2.Each party to bear their own costs of the suit
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution (Environment and Land Court) - the judgment does not expressly state the provision; the matter was heard as a first-instance land dispute on a preliminary objection under Section 7 of the Civil Procedure Act and Section 8 of the Limitation of Actions Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Suchan Investments Limited v Minar Katherine Holroyd, Suneina Leonora Pulling & Laura Sushila Pulling (Being the co-administrators of the Estate of the Late Dipa Jashbai Pulling (Deceased)) (Environment & Land Case 1142 of 2016) [2022] KEELC 2889 (KLR)", Case Analysis (2022). ELC Suit No. (unspecified, Nairobi) - suit filed 19.9.2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2889/eng@2022-05-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.