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ELCDismissedEnvironment & Land Case E383 of 2022· [2023] KEELC 17194 (KLR)

Kibera v Kangethe & another

Environment and Land Court of Kenya
25 April 2023
1,469 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a defendant's attempt to kill a land suit early, ruling that res judicata claims need evidence, not a preliminary objection.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi (M.D. Mwangi, J) determined a preliminary objection by the 2nd Defendant, Haji Omari, to the Plaintiff's suit and interlocutory injunction application concerning L.R. No. 36/1/133 in Eastleigh, Nairobi. The 2nd Defendant raised eight grounds, principally that the court lacked jurisdiction because the subject property was under determination in ELCC 1030 of 2013 (Haji Omari v Edward Kangethe), in which judgment had been delivered on 24th February 2022 declaring the 1st Defendant a trespasser; that the suit violated the doctrine of sub judice under Section 6 of the Civil Procedure Act; and that no cause of action was disclosed against him since the sale contract was between the Plaintiff and the 1st Defendant only. The court framed a single issue: whether the objection met the threshold of a true preliminary objection. Applying the Mukhisa Biscuits definition as restated by the Supreme Court in Hassan Ali Njoho, and Oraro v Mbaja, the court held that the grounds raised factual matters requiring evidence - including the pleadings, judgment and decree in the other suit - and therefore were not pure points of law. Relying on George Kamau Kimani and Henry Wanyama Khaemba, the court held that res judicata and sub judice cannot be raised by preliminary objection but by notice of motion with annexed pleadings. The preliminary objection dated 13th February 2023 was overruled and dismissed with costs to the Plaintiff. The suit and injunction application remain pending for determination on their merits.

Key legal issues

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Whether the 2nd Defendant's preliminary objection met the threshold of a true preliminary objection

Holding

It did not; the objections on sub judice, res judicata and lack of cause of action require evidence and material from the other suit (ELCC 1030 of 2013) and are therefore not pure points of law.

Reasoning

Applying Mukhisa Biscuits and Oraro v Mbaja, a preliminary objection must be a pure point of law argued on the assumption that all pleaded facts are correct. The 2nd Defendant's grounds required verification of the pleadings, judgment and decree in ELCC 1030 of 2013 to establish sub judice/res judicata. Such factual matters must be raised by a normal application supported by affidavit with the necessary material evidence annexed.

p. 3

Legal principles established

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  • A ground of res judicata or sub judice cannot be raised by way of preliminary objection where it requires ascertainment of facts or evidence; it should be raised by notice of motion with pleadings annexed.

Court orders

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  1. 1.The 2nd Defendant's preliminary objection dated 13th February 2023 is overruled and dismissed with costs to the Plaintiff
Jurisdiction invoked
Article 162(2)(b) of the Constitution (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, "Kibera v Kangethe & another", Case Analysis (2023). Environment & Land Case E383 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17194/eng@2023-04-25

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