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ELCDismissedEnvironment & Land Case 16 of 2019· [2022] KEELC 13305 (KLR)

Delta Connections Limited v Deche

Environment and Land Court
3 October 2022
MOMao Odeny
1,203 words in judgment
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The bottom line

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A Kenyan land court ruled a company is legally separate from its owners, so prior cases involving its directors don't block its new lawsuit.

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 the defendant's notice of preliminary objection dated May 3, 2019 in a land dispute over portion no 67 Takaungu plot 1. The defendant objected that the plaintiff's suit was time barred under section 7 of the Limitation of Actions Act and was res judicata and sub judice by reference to six prior proceedings, including Civil Suit No 203 of 2000, Kilifi SRMCC No 32 of 1996 and Mombasa High Court Case No 161 of 1997. The defendant argued that the directors and shareholders of the plaintiff company were the same plaintiffs in the former suits. The plaintiff, through a further affidavit by Moses Waweru Ndung'u, denied participation in the former suits by itself, its directors or its advocates, and did not file written submissions as agreed. The court, guided by Mukisa Biscuit and Oraro v Mbaja, held that a preliminary objection must be a pure point of law and cannot rest on disputed facts. It found that the plaintiff company was never a party to the former suits and that a company is a separate legal entity from its directors and shareholders, so section 7 of the Civil Procedure Act was not satisfied. Relying on Henry Wanyama Khaemba, the court held that res judicata requires probing of evidence and is best raised by notice of motion with annexed pleadings; the defendant's route through submissions and a list of documents was a 'backdoor shortcut' depriving the plaintiff of cross-examination. On limitation, the defendant made no submissions, and on the plaint the cause of action arose in 2012 with suit filed in 2019, so the right to sue was not extinguished. The preliminary objection was dismissed with costs to the plaintiff.

Key legal issues

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01

Whether the preliminary objection on res judicata is a proper preliminary objection

Holding

It is not; res judicata requires probing of evidence and cannot be determined on a preliminary objection, especially where the plaintiff company was never a party to the former suits.

Reasoning

Applying Mukisa Biscuit and Oraro v Mbaja, a preliminary objection must be a pure point of law not dependent on disputed facts. The defendant admitted the plaintiff company was not a party to the former suits and relied only on identity of directors and shareholders, which requires evidence. The res judicata material was filed with submissions rather than a supporting affidavit, denying the plaintiff a fair chance to respond.

p. 2
02

Whether the suit is time barred under section 7 of the Limitation of Actions Act

Holding

No; the cause of action arose in 2012 and the suit was filed in 2019, within the limitation period for recovery of land.

Reasoning

The defendant's submissions dwelt on res judicata and did not address limitation. On the face of the plaint, the cause of action arose in 2012 and the suit was filed in 2019, so the plaintiff's right to sue for recovery of land had not been extinguished.

p. 3

Legal principles established

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  • A company is a separate legal entity from its directors and shareholders; res judicata under section 7 requires the former suit to be between the same parties or parties under whom they claim litigating under the same title.
  • Res judicata involving disputed facts is best raised by notice of motion with annexed pleadings, not by preliminary objection.

Court orders

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  1. 1.The defendant's preliminary objection dated May 3, 2019 is dismissed with costs to the plaintiff

Authorities

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Legislation

  • Limitation of Actions Actsection 7
  • Civil Procedure Actsection 7
  • Civil Procedure RulesOrder 21 [1]

Cases cited (8)

  • Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd
    (1969) EA 696

    Definition of a preliminary objection as a pure point of law

  • Oraro v Mbaja
    (2005) eKLR

    A preliminary objection must not deal with disputed facts

  • Henry Wanyama Khaemba v Standard Chartered Bank Ltd & another
    (2014) EKLR

    Res judicata issues requiring evidence cannot be handled as preliminary objections

  • ET v Attorney General & another
    [2012] eKLR
  • Omondi v National Bank of Kenya Limited
    [2001] EA 177
  • Njagu v Wambugu & another
    Nbi HCCC No 2340 of 1991
  • Charity Njanja Mwaniji v James Mwaniki Gaturi & another
    Nyahururu ELC Case No 184 of 2017
  • Diocese of Eldoret Trustees Registered v Attorney General & 2 others
    Eldoret ELC No 19 of 2019
Jurisdiction invoked
Article 162(2)(b) of the Constitution establishing the Environment and Land Court (implied); the ruling does not expressly invoke a jurisdictional provision

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, "Delta Connections Limited v Deche", Case Analysis (2022). Environment & Land Case 16 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13305/eng@2022-10-03

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