Kariuki & 3 others (Suing as Chairman, Vice Chairlady, Secretary and Treasurer of members on their behalf and of Lake Naivasha Riparian Association) v National Land Commission & 8 others; Ethics & Anti-Corruption Commission & another (Interested Parties)
The bottom line
#Kenya's Environment and Land Court ruled that res judicata cannot be used to strike out a case through a preliminary objection because it requires examining evidence from earlier suits.
What this practically means
#Executive summary
#Key legal issues
#Whether a preliminary objection on res judicata is a pure point of law
It is not; res judicata requires probing of evidence and scrutiny of pleadings and is therefore improperly raised by preliminary objection
Applying Mukhisa Biscuit and the Khaemba, Kimani and Karugu decisions, the court held that a preliminary objection must rest on undisputed facts and pure law. Determining res judicata requires perusing the pleadings of the alleged former suits, none of which were availed to the court, so the objection could not dispose of the petition without evidence.
Whether the 6th Respondent's preliminary objection had merit
It lacked merit and was dismissed with costs
The court found that the objection was founded on factual assertions about prior suits whose pleadings and decisions were not made available for interrogation, and both sides failed to avail the pleadings. Since the ground required ascertainment of facts, it fell outside the limited scope of a preliminary objection.
Legal principles established
#- A preliminary objection must be a pure point of law, not blurred with factual details liable to be contested or proved through evidence
- Res judicata cannot be raised by way of preliminary objection because it requires probing of evidence and scrutiny of pleadings in the former suits
Court orders
#- 1.The 6th Respondent's Preliminary Objection filed in court on 9th February, 2023 is dismissed with costs
- Jurisdiction invoked
- Articles 2(2), 10, 20(2), 21, 22(1), 23(3), 27, 40(6), 47, 50(1), 60(1), 62(1)(l),(n), 67, 69, 70, 162(2) and 258 of the Constitution of Kenya 2010; Environment and Land Court jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kariuki & 3 others (Suing as Chairman, Vice Chairlady, Secretary and Treasurer of members on their behalf and of Lake Naivasha Riparian Association) v National Land Commission & 8 others; Ethics & Anti-Corruption Commission & another (Interested Parties)", Case Analysis (2023). Environment & Land Petition E009 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19987/eng@2023-09-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.