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ELCDismissedEnvironment & Land Case E14 of 2022

Okonjo (Suing as the administrator of the Estate of Michael Okonjo (Deceased) & another v Agola & 6 others

Environment and Land Court
19 June 2023
3,314 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Nakuru court ruled that defences like time limits and 'already decided' claims need evidence at trial, not a shortcut dismissal.

What this practically means

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Executive summary

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The 6th and 7th defendants in Environment & Land Case E14 of 2022 at Nakuru raised a preliminary objection dated July 4, 2022 seeking dismissal of the plaintiffs' suit on five grounds: that the claim was filed out of time contrary to the Limitation of Actions Act; that it was res judicata Nakuru High Court civil appeal No 64 of 2003 and Nakuru Court of Appeal civil application No 124 of 2006; that no cause of action was made against them; and that the 6th defendant was an innocent purchaser for value without notice. The plaintiffs, who seek declaratory orders that registration of the 1st, 2nd and 3rd defendants as owners of 33 acres of Rongai/Lengenet Block 2/12 was fraudulent, eviction of the 6th defendant and a perpetual injunction, opposed the objection. The 1st plaintiff in effect agreed with the 6th and 7th defendants, seeking only the correct title, while the 2nd plaintiff, who claimed to have bought 5 acres in 1986, argued he was not party to the earlier proceedings. Applying the Mukhisa Biscuit definition of a preliminary objection, and following Sichuan Huashi, Oruta v Nyamato, Divecon, Khaemba and Kimani, Omollo J held that limitation and res judicata are not pure points of law: limitation must be determined at trial on evidence, and res judicata requires scrutiny of pleadings in the former suits, none of which were availed. The preliminary objection was dismissed with costs. The suit proceeds to full trial.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.whether the preliminary objection dated July 4, 2022 has merit

Key legal issues

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01

Whether limitation of time can be raised by preliminary objection

Holding

No; limitation is a matter for trial on evidence

Reasoning

Relying on Sichuan Huashi Enterprises Corp Limited v Micheal Misiko Muhindi and Oruta & another v Nyamato, the court held that limitation defences require evidence at trial and cannot be dealt with summarily as a preliminary point, as the Limitation of Actions Act does not encourage striking out suits on such a preliminary issue.

p. 6
02

Whether res judicata can be raised by preliminary objection

Holding

No; res judicata requires probing of evidence and scrutiny of pleadings in the former suits

Reasoning

Following Henry Wanyama Khaemba v Standard Chartered Bank Ltd and George Kamau Kimani & 4 others v County Government of Trans-Nzoia, the court held that res judicata is not a true preliminary objection because it requires probing of evidence; the proper course is a notice of motion with pleadings annexed. No pleadings from the alleged former suits were availed.

p. 7
03

Whether the preliminary objection dated July 4, 2022 has merit

Holding

It lacks merit and is dismissed with costs

Reasoning

All grounds of the objection - limitation, res judicata, absence of cause of action and innocent purchaser status - depend on facts requiring evidence or scrutiny of pleadings in the former suits, none of which were availed. The objection therefore failed the Mukhisa Biscuit test of a pure point of law.

Legal principles established

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  • A preliminary objection must be a pure point of law and cannot rest on disputed facts requiring evidence
  • The defence of limitation of time cannot be determined summarily at a preliminary stage but only at trial on evidence
  • Res judicata cannot be raised by way of preliminary objection; it requires scrutiny of pleadings in the former suit

Court orders

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  1. 1.The 6th and 7th defendants' preliminary objection dated July 4, 2022 is dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Environment and Land Court jurisdiction under Article 162(2)(b) of the Constitution (implied; not expressly cited in the ruling)

Relief refused

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Striking out of the plaintiffs' suit on grounds of limitation, res judicata, no cause of action and innocent purchaser status

Limitation and res judicata cannot be determined on a preliminary objection as they require evidence and scrutiny of pleadings in the former suits

p. 7

Costs

The preliminary objection dated July 4, 2022 is dismissed with costs to the plaintiffs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the result, I find that the 6th and 7th defendants preliminary objection dated July 4, 2022 lacks merit and is hereby dismissed with costs.
Final orders - dismissal of preliminary objection
The question of res judicata cannot and should not be raised by way of a preliminary objection as it requires, at the very minimum, a scrutiny of pleadings in the alleged former suit or suits. None has been availed to this court.
p. 7Res judicata and preliminary objections
issues of limitation of time can only be determined at the trial of the main suit and not a preliminary stage.
p. 6Limitation of actions
a "preliminary objection" correctly understood, is now well defined as, and declared to be, a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence.
p. 5Definition of preliminary objection (Mukhisa Biscuit)

Issues in the judgment

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minor

Inconsistent citation of the Court of Appeal application number

minor

Typographical error in Mukhisa Biscuit citation

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, "Okonjo (Suing as the administrator of the Estate of Michael Okonjo (Deceased) & another v Agola & 6 others", Case Analysis (2023). Environment & Land Case E14 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18259/eng@2023-06-19

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