Okonjo (Suing as the administrator of the Estate of Michael Okonjo (Deceased) & another v Agola & 6 others
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether the preliminary objection dated July 4, 2022 has merit
Key legal issues
#Whether limitation of time can be raised by preliminary objection
No; limitation is a matter for trial on evidence
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.
Whether res judicata can be raised by preliminary objection
No; res judicata requires probing of evidence and scrutiny of pleadings in the former suits
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.
Whether the preliminary objection dated July 4, 2022 has merit
It lacks merit and is dismissed with costs
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
#- 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
#- 1.The 6th and 7th defendants' preliminary objection dated July 4, 2022 is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
Costs
The preliminary objection dated July 4, 2022 is dismissed with costs to the plaintiffs.
Quotable passages
#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.
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.
issues of limitation of time can only be determined at the trial of the main suit and not a preliminary stage.
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.
Issues in the judgment
#Inconsistent citation of the Court of Appeal application number
Typographical error in Mukhisa Biscuit citation
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.