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ELCPartially AllowedEnvironment & Land Case E068 of 2022· [2023] KEELC 17904 (KLR)

Mbogo & another v Zimman Settlement Scheme Society & 6 others

Environment and Land Court of Kenya
12 June 2023
2,749 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 dismissed a bid to remove a society's lawyer from record because the challengers couldn't prove the chairman had actually been voted out.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi (Mogeni J) determined a Notice of Preliminary Objection dated 3/02/2023 raised by the 1st and 2nd Defendants against an application by the 1st, 3rd – 7th Defendants seeking a declaration that the law firm of Adera & Kenyatta Advocates was properly on record for the 1st Defendant, a registered society. The objectors argued the application was res judicata, contending the court had pronounced itself on representation in directions of 5/12/2022. The court held that res judicata under Section 7 of the Civil Procedure Act requires a matter 'heard and finally decided'; on 5/12/2022 the court only gave directions on the plaintiff's contempt application and pre-trial conference, so the doctrine did not apply and the preliminary objection failed. On the merits, the applicants relied on letters from the Registrar of Societies showing the 2nd Defendant had been voted out as chairman on 27/08/2020 and could not instruct advocates. Applying Sections 107 and 108 of the Evidence Act, the court held the applicants bore the burden of proof and their evidence was insufficient: they should have produced certified minutes of the removal meeting under Section 29 of the Societies Act and the register of members under Section 25. The application dated 25/01/2023 was dismissed. The 2nd Defendant maintained he was bona fide chairman, citing a pending Petition No. 160 of 2020 on the bona fide officials. No costs order was made.

Key legal issues

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01

Whether the application is res judicata given directions of 5/12/2022

Holding

Res judicata does not apply because the issue of representation was never heard and finally decided on 5/12/2022; the court only gave directions on the plaintiff's contempt application and pre-trial conference

Reasoning

The court reviewed the proceedings of 5/12/2022 and found that on that date the matter came up for pre-trial conference and directions on the plaintiff's contempt application. No judicial determination was made on representation. Applying Mulla's formulation of 'heard and finally decided', the doctrine under Section 7 of the Civil Procedure Act was not attracted, and the preliminary objection failed.

02

Whether the preliminary objection satisfied the Mukisa Biscuit test

Holding

The objection, though framed as a pure point of law on res judicata, was considered on its merits and found unmerited

Reasoning

The court applied the classic Mukisa Biscuit test as endorsed by the Supreme Court in IEBC v Cheperenger, that a preliminary objection must raise a settled and crisp point of law argued on assumed facts. The court then determined the res judicata question as a jurisdictional issue it was obliged to consider at the earliest opportunity, following Owners of the Motor Vessel 'Lillian S'.

p. 2
03

Whether Adera & Kenyatta Advocates should be declared properly on record for the 1st Defendant

Holding

Application dismissed; the applicants failed to prove that the 2nd Defendant had been voted out and lacked authority to instruct advocates

Reasoning

Relying on Sections 107 and 108 of the Evidence Act and Halsbury's Laws of England, the court held the applicants bore the legal burden of proving the 2nd Defendant ceased to be an official. Letters from the Registrar of Societies were held insufficient; the court expected certified minutes of the 27/08/2020 meeting under Section 29 of the Societies Act and the register of members under Section 25, which were not produced.

p. 5

Legal principles established

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  • Res judicata under Section 7 of the Civil Procedure Act requires that the matter was heard and finally decided, i.e. the court exercised its judicial mind on a contested matter; mere directions do not qualify
  • A party asserting that a society's officials were voted out and thus cannot instruct advocates bears the burden of proving those facts, including production of minutes and the register of members

Court orders

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  1. 1.The Notice of Preliminary Objection dated 3/02/2023 is dismissed as not merited
  2. 2.The Notice of Motion application dated 25/01/2023 is dismissed for lack of merit

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50
  • Civil Procedure ActSection 7
  • Civil Procedure ActSections 1A, 1B and 3A
  • Societies ActSection 44(1)
  • Societies ActSection 29
  • Societies ActSection 25
  • Evidence ActSections 107 and 108
  • Civil Procedure Rules, 2010Order 51 Rule 1; Order 9 Rules 2 & 5

Cases cited (3)

  • Owners of the Motor Vessel 'Lillian S' -v- Caltex Oil Kenya Ltd
    1989 KLR 1

    A court must consider jurisdictional issues such as res judicata at the earliest opportunity or down its tools

  • Mukisa Biscuit Manufacturing Co Ltd .V. West End Distributors Ltd
    1969 E.A 696

    Definition and test of a preliminary objection - a pure point of law

  • Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 others
    Civil Application No. 36 of 2014 [2015] eKLR

    A preliminary objection should be founded upon a settled and crisp point of law

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act; the court also considered its jurisdiction via the res judicata doctrine under Section 7 of the Civil Procedure Act

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, "Mbogo & another v Zimman Settlement Scheme Society & 6 others", Case Analysis (2023). Environment & Land Case E068 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17904/eng@2023-06-12

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