Mbogo & another v Zimman Settlement Scheme Society & 6 others
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the application is res judicata given directions of 5/12/2022
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
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.
Whether the preliminary objection satisfied the Mukisa Biscuit test
The objection, though framed as a pure point of law on res judicata, was considered on its merits and found unmerited
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'.
Whether Adera & Kenyatta Advocates should be declared properly on record for the 1st Defendant
Application dismissed; the applicants failed to prove that the 2nd Defendant had been voted out and lacked authority to instruct advocates
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.
Legal principles established
#- 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
#- 1.The Notice of Preliminary Objection dated 3/02/2023 is dismissed as not merited
- 2.The Notice of Motion application dated 25/01/2023 is dismissed for lack of merit
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.