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ELCDismissedNot stated in judgment (Siaya ELC Originating Summons dated February 26, 2021)· [2023] KEELC 687 (KLR)

Oriaro v Okelo & another (Sued as the legal representatives of Michael Onyango Adit - Eeceased) (Environment & Land Case 1 of 2021) [2023] KEELC 687 (KLR)

Environment and Land Court
9 February 2023
1,890 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to strike out a land claim as res judicata because the defendants could not prove an earlier case was actually decided on its merits.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Siaya (Koross J) determined a notice of preliminary objection dated October 25, 2022 in which the defendants contended that the plaintiff's originating summons dated February 26, 2021 - seeking declarations that their proprietary interests over Siaya/Obambo/2135 had extinguished and that the plaintiff had acquired title by adverse possession - was res judicata and should be struck out with costs. The defendants relied on a series of historical suits between the parties' ancestors over the parent parcel Siaya/Obambo/136, including Land Civil Case No 6 of 1970, Kisumu HC Civil Appeal No 5 of 1971, Kisumu RMCC No 20 of 1970 and Kisumu RMCC No 24 of 1972. The plaintiff filed no submissions. The court set out the statutory framework of section 7 of the Civil Procedure Act and the overriding objective provisions, and confirmed that res judicata, going to jurisdiction, may be raised suo motu. Applying the Mukhisa Biscuit test, the court held that most of the alleged prior suits raised facts requiring trial and rested improperly on judgments attached to written submissions, which are arguments and not evidence. Even as to Kisumu RMCC No 24 of 1972, whose existence was undisputed, the defendants were silent on whether it had been heard and determined on merits. The court therefore declined to find the suit res judicata, holding that the question must abide the outcome of the main suit. The preliminary objection was dismissed, with each party bearing their respective costs.

Key legal issues

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01

Whether the suit is res judicata on account of prior suits between the parties' ancestors

Holding

The preliminary objection failed; the court could not confirm that Kisumu RMCC No 24 of 1972 was heard and finally determined on merits, and the other cited suits raised facts requiring trial

Reasoning

Res judicata under section 7 of the Civil Procedure Act requires that the matter was directly and substantially in issue in a former suit between the same parties or their privies, litigating under the same title, before a competent court, and heard and finally decided. The defendants were silent on whether the 1972 suit was determined on merits. Judgments attached to submissions were improper evidence; a formal application supported by affidavit was required.

p. 4
02

Whether the preliminary objection raised a pure point of law

Holding

Most of the alleged prior suits raised facts that had to be tried and tested and fell outside the scope of a preliminary objection; only Kisumu RMCC No 24 of 1972 was not disputed to exist

Reasoning

Following Mukhisa Biscuit and Aviation & Allied Workers Union, a preliminary objection must rest on agreed facts and a pure question of law. Because the existence and outcome of most of the cited prior suits had to be established by evidence, they could not sustain the objection. Even for the 1972 suit, finality of determination was unproven.

p. 4
03

Whether the court may raise res judicata suo motu

Holding

Yes; res judicata goes to jurisdiction and the court may raise it of its own motion

Reasoning

Jurisdiction is a matter of law the court may raise suo motu. The court relied on John Florence Maritime Services and Owners of the Motor Vessel 'Lilian S' for the proposition that a question of jurisdiction may be raised by a party or by the court on its own motion and must be decided forthwith on the evidence before the court.

p. 3

Legal principles established

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  • Res judicata relates to the jurisdiction of the court and may be raised suo motu or on the court's inherent power to prevent abuse of process
  • A preliminary objection must raise a pure point of law and cannot rest on facts requiring ascertainment or the exercise of discretion
  • Submissions are arguments and not evidence

Court orders

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  1. 1.The notice of preliminary objection dated October 25, 2022 is dismissed
  2. 2.Each party shall bear their respective costs

Authorities

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Legislation

  • Civil Procedure Actsection 7 (including explanation 4)
  • Civil Procedure Actsections 1A and 1B
  • Environment and Land Court Actsection 3(1)

Cases cited (6)

  • CK Bett Traders Limited & 2 others v Kennedy Mwangi & another
    [2021] eKLR
  • Independent and Electoral Boundaries Commission v Maina Kiai & 5 Others
    (2017) eKLR
  • John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others
    [2015] eKLR
  • Owners of the Motor Vessel 'Lilian S' v Caltex Oil (Kenya) Limited
    [1989] KLR
  • Mukhisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd
    1969 EA 696
  • Aviation & Allied Workers Union Kenya v Kenya Airways Ltd & 3 Others
    [2015] eKLR
Jurisdiction invoked
Environment and Land Court Act, section 3(1); Civil Procedure Act, sections 1A, 1B and 7

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, "Oriaro v Okelo & another (Sued as the legal representatives of Michael Onyango Adit - Eeceased) (Environment & Land Case 1 of 2021) [2023] KEELC 687 (KLR)", Case Analysis (2023). Not stated in judgment (Siaya ELC Originating Summons dated February 26, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/687/eng@2023-02-09

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