Kanji & another v Gathigi & another (Environment & Land Case E007 of 2022) [2022] KEELC 2918 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled you cannot use a preliminary objection to kill a land suit on res judicata grounds, and protected long-term occupants with an injunction.
What this practically means
#Executive summary
#Key legal issues
#Whether the Preliminary Objection on res judicata is merited
Not merited and dismissed, because determining res judicata would require investigation of facts, disqualifying it as a preliminary objection
Applying Mukisa Biscuit and Oraro v Mbaja, a preliminary objection must be a pure point of law on assumed facts. Determining whether the suit is res judicata under Section 7 of the Civil Procedure Act requires establishing the elements of res judicata from facts, including prior pleadings and competence of the former courts. The court endorsed George Kamau Kimani: res judicata should be raised by notice of motion with annexed pleadings. The objection therefore failed the standard for preliminary objections.
Whether an interim injunction can issue
Granted in terms of prayer No. 2 in the meantime, the Applicants having established a prima facie case and balance of convenience
Applying Giella v Cassman Brown, the court found the Applicants live on and use the suit land, uncontroverted by photographs of a permanent structure, while the registered owners do not live there. Whether they are entitled to adverse possession must be determined at a fair hearing; they may win or lose, but the right must first be ascertained. Eviction upon enforcement of the succession judgment would cause substantial loss, and no alternative home was shown, tilting the balance of convenience towards granting the injunction.
Legal principles established
#- A preliminary objection must raise a pure point of law and cannot be sustained where facts must be ascertained
- Res judicata cannot be raised by way of preliminary objection; it should be raised by notice of motion with pleadings annexed
Court orders
#- 1.The Preliminary Objection dated 5th May, 2022, and filed on 6th May, 2022, is not merited and is dismissed
- 2.Interim injunction granted in terms of prayer No. 2 of the Originating Summons application dated 28th March 2022, in the meantime
- 3.Parties directed to prepare the Originating Summons for expeditious hearing of the contested issues
- Jurisdiction invoked
- Original jurisdiction under the Environment and Land Court Act over a claim of adverse possession (not stated by express provision in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kanji & another v Gathigi & another (Environment & Land Case E007 of 2022) [2022] KEELC 2918 (KLR)", Case Analysis (2022). Not stated in the judgment (Originating Summons dated 28th March 2022, Murang'a). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2918/eng@2022-06-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.