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ELCAllowedEnvironment and Land Appeal E005 of 2020· [2022] KEELC 14505 (KLR)

Ann Nkechi Mubichi (Legal Representative of the Estate of Patrick Mubichi M'Amburugua (Deceased) v Joshua Kiome Mworia

Environment and Land Court at Meru
2 November 2022
3,526 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed that a suit dismissed for want of prosecution cannot be used to block a fresh land dispute claim as res judicata.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Meru against a ruling of Hon. L.N Juma (SRM) in Meru CM ELC Case No 5 of 2020, in which the appellant's suit - seeking declarations that the transfer of LR No Kiirua/Naari/2186 from her deceased husband's estate to the respondent was fraudulent and illegal, and cancellation of the title - was struck out on a preliminary objection that she lacked locus standi and that the suit was res judicata. The respondent relied on prior suits dismissed for want of prosecution and on the limited grant ad litem being specific to ELC No 129 of 2016. C.K Nzili, J identified two issues: whether the preliminary objection was merited and whether the trial court applied the law correctly. The court held that the objection was not a true preliminary objection because it depended on facts and evidence: the respondent had filed no pleading challenging the appellant's pleaded facts, and written submissions cannot replace pleadings or evidence. On res judicata, following Court of Appeal authority, the court held that suits dismissed for want of prosecution are technical knockouts not heard and determined on merits and cannot satisfy section 7 of the Civil Procedure Act. On the limited grant, the defect was one of form, curable under sections 1A and 1B of the Civil Procedure Act and article 159(2)(d) of the Constitution, and the appellant had since obtained a fresh grant, leading her to abandon ground 2. The appeal was allowed with costs.

Key legal issues

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01

Whether the preliminary objection on res judicata and locus standi was a true preliminary objection

Holding

It was not; it required facts and evidence to be adduced and fell short of a pure point of law.

Reasoning

The respondent filed no pleading challenging the facts pleaded in the plaint, including the date of death, the 2019 transfer without letters of administration, and the limited grant. Res judicata is anchored on evidential facts properly raised by way of replying affidavit or grounds of opposition. Written submissions cannot substitute for pleadings and evidence. The trial court therefore had no assumed facts on which to base a legal finding.

02

Whether suits dismissed for want of prosecution can ground res judicata

Holding

No; res judicata requires a hearing and determination on merits, which a dismissal for want of prosecution is not.

Reasoning

Relying on Court of Appeal authority, the court held that a judgment entered for want of prosecution is a technical knockout that does not satisfy section 7 of the Civil Procedure Act because the issues are never determined and addressed to finality. The former suits relied on by the respondent were dismissed for want of prosecution and never appealed.

p. 4
03

Whether the limited grant ad litem, specific to ELC No 129 of 2016, conferred capacity to file the present suit

Holding

The defect was one of form, curable by amendment and by the overriding objective; it did not defeat the appellant's capacity.

Reasoning

The grant was issued by the High Court and was unchallenged. Citing section 72 of the Interpretation and General Provisions Act, form does not void an instrument where substance is unaffected. The appellant had also obtained a fresh grant in Meru CM's Succession Cause No 21 of 2022, and ground 2 of the appeal was abandoned on that basis.

Legal principles established

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  • A suit dismissed for want of prosecution is not heard and determined on merits and cannot found a plea of res judicata.
  • A preliminary objection must be a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot depend on facts requiring ascertainment or evidence.
  • Written submissions cannot replace pleadings or take the place of evidence.
  • A defect in a limited grant ad litem that is one of form and not substance is curable under the overriding objective.

Court orders

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  1. 1.The appeal is allowed with costs

Authorities

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Legislation

  • Law of Succession ActParagraph 14 of the 5th Schedule; section 54
  • Civil Procedure ActSection 7; sections 1A and 1B
  • Civil Procedure RulesOrder 42; Order 3 rule 2; Order 6 rules 1, 2, 3; Order 7 rule 1(5); Order 2 rules 3 and 9
  • Land Registration ActSection 68
  • Interpretation and General Provisions Act (Cap 2)Section 72
  • Probate & Administration RulesRule 36(2); rule 14; Form 47 in the 1st Schedule
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (23)

  • Abok James Odera t/a AJ Odera & Associates vs Kenya Posts & Telecommunications Corporation
    HCCC No 51808 of 1990

    Duty of first appellate court to re-appraise evidence and reach independent findings.

  • Re Estate of Morarji Bhanji Dhanak (deceased)
    (2000) eKLR

    Ad litem grant confers capacity to represent the estate; form not void if substance unaffected.

  • Nathaniel Ngure Kihiu vs Housing Finance Company of Kenya
    (2018) eKLR

    Dismissal for want of prosecution is not res judicata.

  • Mwambeja Ranching Co Ltd vs Kenya National Capital Corporation
    (2015) eKLR

    Litigation must end (relied on by respondent).

  • Cosmas Mrombo Moka vs Cooperative Bank (K) Ltd & another
    (2018) eKLR

    Suit dismissed for want of prosecution cannot ground res judicata.

  • KCB Ltd vs Benjoh Amalgamated Ltd
    (2017) eKLR

    Res judicata requires hearing and determination on merits.

  • Tee Gee Electricals & Plastics Co Ltd vs KIE
    Kisumu CACA No 333 of 2001

    Res judicata inapplicable where matter disposed of for want of prosecution.

  • Diwafa Investments Ltd vs Joakim Musyoki Kiio
    (2019) eKLR

    Res judicata requires determination on merits.

  • MWK vs AMW
    (2016) eKLR

    Res judicata requires determination on merits.

  • Re-Estate of Samuel Githio alias Ngugi Githui deceased
    (2019) eKLR

    Limited grants and capacity to sue.

  • Michael Bett vs Jackson Koech
    (2019) eKLR

    Dismissal for want of prosecution is a technical knockout, not res judicata.

  • Mutinda Mule vs IEBC & another
    (2014) eKLR

    Parties are bound by their pleadings and issues flow from pleadings.

  • Raila Odinga vs IEBC
    (2017) eKLR

    Purpose of pleadings in an adversarial system; parties must not travel outside pleadings.

  • Mukhisa Biscuit Manufacturers Ltd vs West End Distributors Ltd
    (1969) EA 696

    Definition of a preliminary objection as a pure point of law.

  • Oraro vs Mbajo
    (2005) eKLR

    A plea bearing factual aspects calling for proof is not a true preliminary objection.

  • Aviation and Allied Workers Union of Kenya vs Kenya Airways Ltd & another
    (2015) eKLR

    Preliminary objection on pure question of law requires no proper contest as to facts.

  • IEBC vs Maina Kiai and 5 others
    (2017) eKLR

    Elements of the doctrine of res judicata.

  • John Florence Maritime Services Ltd & another vs Cabinet Secretary for Transport and Infrastructure & 3 others
    (2015) eKLR

    Res judicata plea anchored on evidential facts to be raised by replying affidavit or grounds of opposition.

  • Daniel Toroitich Arap Moi vs Stephen Mwangi Murithi
    (2014) eKLR

    Submissions cannot replace pleadings or evidence.

  • Morjaria vs Abdallah
    (1984) KLR 490

    Purpose of grant ad colligenda bona; cannot substitute for ad litem grant.

  • Peter Owada Ogwang vs Jared Obiero Ouya
    (2014) eKLR

    Limited grant ad colligenda bona cannot represent a deceased party in a suit; conversion of grants.

  • Martha Diro Odero vs Come Cons Africa Ltd
    (2015) eKLR

    Locus standi where grant ad colligenda bona covers collection of assets including filing suit.

  • Caneland Ltd and others vs Dolphin Bank Ltd
    CA Civil Appeal No 20 of 2000

    Res judicata requires hearing and determination on merits.

On appeal from
Chief Magistrate's Court at Meru
Meru CM ELC Case No. 5 of 2020
Jurisdiction invoked
First appeal under Order 42 of the Civil Procedure Rules against the ruling of the Senior Resident Magistrate

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, "Ann Nkechi Mubichi (Legal Representative of the Estate of Patrick Mubichi M'Amburugua (Deceased) v Joshua Kiome Mworia", Case Analysis (2022). Environment and Land Appeal E005 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14505/eng@2022-11-02

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