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ELCDismissedConstitutional Petition (Malindi) - Notice of Motion dated 30th August 2021· [2022] KEELC 3772 (KLR)

Baishe & 3 others v Madi (Constitutional Petition 20 of 2021) [2022] KEELC 3772 (KLR)

Environment and Land Court
19 August 2022
MOM.A. Odeny
2,257 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Malindi (M.A. Odeny, J) determined a Notice of Motion dated 30th August 2021 by the Petitioners seeking stay of execution of the judgment and decree of 16th January 2018 by the Chief Kadhi, Mombasa, pending hearing of their constitutional petition. The Respondent opposed through a preliminary objection on grounds that the petition was res judicata, sub judice and an abuse of court process, arising from a long history of succession proceedings before the Kadhi's courts at Lamu and Mombasa and appeals in the High Court, some dismissed for want of prosecution. The court first dealt with the preliminary objection. Applying section 7 of the Civil Procedure Act, the Mukisa Biscuits test for preliminary objections, the Bernard Mugo Ndegwa res judicata criteria, and Tee Gee Electrics, the court held that res judicata does not apply where earlier suits were dismissed for want of prosecution, since such dismissals are not determinations on the merits; further, the Kadhi's judgment did not determine ownership because Kadhis lack jurisdiction over un-adjudicated land outside a succession cause under Islamic law. The preliminary objection was dismissed. On the stay application, the court found inordinate, unexplained delay in filing, noted the respondent's assertion that the decree had already been executed, and held that the applicants had not established substantial loss. The application was dismissed with costs, the interim orders previously granted were vacated, and the parties were given liberty to fast-track the hearing of the petition, the court reserving for later the question whether the petition is properly a constitutional petition.

Key legal issues

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01

Whether the petition is barred by res judicata

Holding

The preliminary objection fails; prior proceedings did not determine with finality the issue raised in the petition, and the appeals were dismissed for want of prosecution, which does not trigger res judicata.

Reasoning

Section 7 of the Civil Procedure Act requires that the matter have been directly and substantially in issue and heard and finally decided. Applying the Bernard Mugo Ndegwa test and Tee Gee Electrics, the prior appeals were dismissed for want of prosecution and thus not decided on the merits. Further, the Kadhi's judgment did not determine ownership, as Kadhis lack jurisdiction over un-adjudicated land outside a succession cause under Islamic law.

p. 5
02

Whether the threshold for stay of execution was met

Holding

Not met; the application for stay was dismissed with costs and interim orders vacated.

Reasoning

The applicants did not explain the delay in filing the application years after the decree, the respondent indicated the decree had already been executed, and the applicants failed to demonstrate they would suffer substantial loss if the order was not granted. Litigation must be conducted expeditiously per the overriding objective.

p. 5

Legal principles established

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  • Res judicata does not arise where the earlier suit was dismissed for want of prosecution, as such a suit was not heard and determined on the merits.
  • The doctrine of res judicata prevents multiplicity of suits, reduces costs, and prevents litigants from disguising decided cases by adding or subtracting parties.
  • A preliminary objection may only be raised on a pure point of law which, if argued, may dispose of the suit.

Court orders

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  1. 1.The preliminary objection is dismissed as lacking merit
  2. 2.The Notice of Motion dated 30th August 2021 seeking stay of execution is dismissed with costs
  3. 3.The interim orders earlier granted are vacated
  4. 4.Parties are at liberty to fast track the hearing of the Petition

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure RulesOrder 21 [1]
  • Kadhi's Court Act

Cases cited (5)

  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Limited
    (1969) EA. 696
  • Bernard Mugo Ndegwa v James Nderitu Githae and 2 Others
    (2010) eKLR
  • Tee Gee Electrics and Plastics Company Ltd v Kenya Industrial Estates Limited
    [2005] KLR 97
  • Gideon Sitelu Konchella v Daima Bank Ltd
    [2013] eKLR
  • Mobil Kitale Service Station v Mobil Oil Kenya Limited & another
    [2004] eKLR
Jurisdiction invoked
Original constitutional petition jurisdiction (petition alleging violation of constitutional rights over land)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Baishe & 3 others v Madi (Constitutional Petition 20 of 2021) [2022] KEELC 3772 (KLR)", Case Analysis (2022). Constitutional Petition (Malindi) - Notice of Motion dated 30th August 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3772/eng@2022-08-19

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