Moledina v Vasant (Environment & Land Case E132 of 2021) [2023] KEELC 712 (KLR)

Relying on Mukisa Biscuits and Attorney General v Andrew Mwaura Githinji, the court noted that a preliminary objection must be a pure point of law argued on the assumption that all pleaded facts are correct. Whether the parties and issues in CMCC No. 237 of 2011 were identical to the present suit required probing of evidence and ascertainment of facts, so the objection was improperly framed.

Under section 7 of the Civil Procedure Act the elements must be satisfied conjunctively: same parties litigating under the same title, and the issue heard and finally determined by a competent court. Here the subject matter was the same but the parties differed - the earlier suit was brought by a legal administrator of the deceased, while the present plaintiff is the widow who inherited the property. Further, the earlier suit abated under Order 24 rule 3(2) following the plaintiff's death and was never heard or finally decided on merit.

Section 6 bars trial of a suit where the matter in issue is directly and substantially in issue in a previously instituted pending suit between the same parties. The court adopted the Supreme Court's formulation in the Kenya National Commission on Human Rights case, requiring that multiple suits over the same subject matter be pending between the same parties. The earlier suit had abated and the parties were different, so no pending suit between the same parties existed.

Costs follow the event under the general principles of section 27 of the Civil Procedure Act. Since the preliminary objection was found to be non-meritorious and was dismissed, the defendant was to bear its costs.