Ndambuki & 10 others v Agricultural Finance Corporation & 6 others (Environment and Land Constitutional Petition 02 of 2020) [2022] KEELC 3770 (KLR)
The bottom line
#The Environment and Land Court in Machakos blocked an attempt to dismiss a land petition on res judicata grounds because the objector produced no evidence proving the parties had litigated the same dispute before.
What this practically means
#Executive summary
#Key legal issues
#Whether the petition is res judicata by virtue of the consent order in Machakos ELC Case No 66 of 2015
The preliminary objection fails because the 3rd respondent did not provide pleadings, documents or a court decision proving the petitioners were parties to the earlier suit; the objection requires evidentiary proof and is premature
Section 7 of the Civil Procedure Act requires identity of parties, title and competent court. The 3rd respondent produced no pleadings or decision to confirm the petitioners were parties to Machakos ELC No 66 of 2015 or that the same issues and title were determined. Its averments therefore required evidentiary proof, taking the objection outside the realm of a pure point of law. The supporting affidavit remained uncontroverted, so the objection did not stem from pleadings and was premature and unmerited.
Whether the preliminary objection qualifies as a pure point of law under Mukisa Biscuits
It does not, because facts must be ascertained to establish res judicata
Relying on Mukisa Biscuits, Aviation & Allied Workers Union and Avtar Singh Bhamra, the court held that a preliminary objection must raise a pure question of law argued on assumed facts. Here, establishing identity of parties and subject matter with the Machakos suit required evidence, so the objection could not properly be disposed of as a point of law at the threshold stage.
Legal principles established
#- A preliminary objection must be a pure point of law and cannot be raised where facts must be ascertained
- For res judicata, the prior decision must be from a court of competent jurisdiction, between the same parties litigating under the same title, and the party invoking it must substantiate it
Court orders
#- 1.The notice of preliminary objection dated March 13, 2020 is found unmerited and is disallowed
- 2.Costs will be in the cause
- Jurisdiction invoked
- Article 162(2)(b) Constitution (Environment and Land Court) - original petition jurisdiction; ruling on preliminary objection under Civil Procedure Act section 7 doctrine of res judicata
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndambuki & 10 others v Agricultural Finance Corporation & 6 others (Environment and Land Constitutional Petition 02 of 2020) [2022] KEELC 3770 (KLR)", Case Analysis (2022). Petition dated October 7, 2019 (Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3770/eng@2022-05-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.