Oriaro v Okelo & another (Sued as the legal representatives of Michael Onyango Adit - Eeceased) (Environment & Land Case 1 of 2021) [2023] KEELC 687 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the suit is res judicata on account of prior suits between the parties' ancestors
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
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.
Whether the preliminary objection raised a pure point of law
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
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.
Whether the court may raise res judicata suo motu
Yes; res judicata goes to jurisdiction and the court may raise it of its own motion
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.
Legal principles established
#- 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
#- 1.The notice of preliminary objection dated October 25, 2022 is dismissed
- 2.Each party shall bear their respective costs
- Jurisdiction invoked
- Environment and Land Court Act, section 3(1); Civil Procedure Act, sections 1A, 1B and 7
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.