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ELCOtherELC Case (Eldoret) - Notice of Motion dated March 4, 2022· [2022] KEELC 3528 (KLR)

Cambridge Universal College Limited & another v Hasham Lalji Properties Limited & 2 others (Environment & Land Case E017 of 2022) [2022] KEELC 3528 (KLR)

Environment and Land Court
25 May 2022
SKS M Kibunja
1,589 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 you cannot kill a suit claiming it's res judicata or sub judice through a preliminary objection, because those arguments need evidence.

What this practically means

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Executive summary

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The plaintiff, a tenant on Eldoret Municipality Block 7/113 where it runs a learning institution, moved the court by notice of motion dated March 4, 2022 seeking a temporary injunction restraining the defendants from attaching or auctioning its movable properties over unpaid rent, and directions on depositing rent in court pending the suit. The 1st and 2nd defendants raised a notice of preliminary objection contending that the suit sought to vary orders issued by Hon Lady Justice W Okwany in Nairobi HCCC no E148 of 2019, that the matter was sub judice to that suit, res judicata of prior proceedings, and had already been litigated and dismissed in Eldoret CMCC no E84 of 2022. The plaintiff replied that no proceedings had been annexed to show the orders were subsisting, that the parties differed, and that the earlier Eldoret suit was dismissed at a preliminary stage, not on merits. The court framed three issues and, applying the Mukisa Biscuit test and following the Makilya decision, held that res judicata and sub judice require evidence and comparison of pleadings and cannot be raised as preliminary objections, noting the defendants' own annexures showed evidence was needed. The preliminary objection was rejected with each party bearing their own costs, and costs in the objection were made costs in the cause.

Key legal issues

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01

Whether res judicata and sub judice can be determined via a preliminary objection

Holding

No - such issues require evidence and comparison of pleadings, so the preliminary objection was improper and was rejected.

Reasoning

Applying Mukisa Biscuit, a preliminary objection must be a pure point of law argued on the assumption that all pleaded facts are correct. Determining res judicata or sub judice requires comparing pleadings and parties across the Nairobi and Eldoret suits, and the defendants themselves annexed pleadings as evidence. The court adopted the Makilya decision and held that such analysis of evidence is alien to preliminary objections.

p. 3

Legal principles established

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  • A preliminary objection raises a pure point of law and cannot be sustained where facts must be ascertained; questions of res judicata and sub judice require evidence and comparison of pleadings and are therefore improperly raised as preliminary objections.

Court orders

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  1. 1.The preliminary objection raised by the 1st and 2nd defendants is rejected
  2. 2.Each party to bear their own costs of the preliminary objection
  3. 3.Costs in the preliminary objection to be in the cause

Authorities

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Legislation

  • Civil Procedure Actsection 27

Cases cited (2)

  • Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd
    [1969] EA 696
  • Petronilla Mutuku Makilya & 2 Others v Caroline Mbinya Kathendu & 4 others; Land Registrar, Machakos Land Registry & another (Interested Parties)
    [2022] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the suit property Eldoret Municipality Block 7/113

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, "Cambridge Universal College Limited & another v Hasham Lalji Properties Limited & 2 others (Environment & Land Case E017 of 2022) [2022] KEELC 3528 (KLR)", Case Analysis (2022). ELC Case (Eldoret) - Notice of Motion dated March 4, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3528/eng@2022-05-25

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