Nyawira & 13 others v Galot Industries Limited
The bottom line
#A Kenyan court ruled that res judicata cannot be used to kill a lawsuit through a preliminary objection because it requires proving facts.
What this practically means
#Executive summary
#Key legal issues
#Whether res judicata can be raised by way of preliminary objection
No - proof of the section 7 elements requires interrogation of facts and evidence, so res judicata is not a pure point of law and must be raised by notice of motion supported by affidavit evidence.
The court set out the Mukisa Biscuit and Oraro v Mbaja tests: a preliminary objection must be a pure point of law on assumed pleaded facts, with no factual inquiry. Since establishing res judicata requires proving the former suit, the parties, the issues and the decision, the objection fails the test. The court noted it had held elsewhere that res judicata should be raised by notice of motion with affidavit evidence.
Validity of the respondent's preliminary objection dated February 15, 2021
It was not a proper preliminary objection and was struck out with no orders as to costs.
All three grounds of the objection - estoppel/extended res judicata, determination of the cause of action in ELC Case No 26 of 2014, and extinction of the cause of action by giving up possession - depended on facts requiring proof, not pure points of law. The court did not reach the merits of the res judicata claim.
Legal principles established
#- Res judicata under section 7 of the Civil Procedure Act requires proof of facts (existence of a previous suit, parties, issues and decision) and therefore cannot properly be raised as a preliminary objection; it should be raised by notice of motion supported by affidavit evidence.
Court orders
#- 1.The preliminary objection dated February 15, 2021 is struck out.
- 2.No orders as to costs.
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act No 19 of 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyawira & 13 others v Galot Industries Limited", Case Analysis (2022). Enviromental and Land Originating Summons E5 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/4841/eng@2022-09-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.