Kariuki & another v Nyotta & another (Environment and Land Appeal E127 of 2022) [2024] KEELC 1620 (KLR)
The bottom line
#The High Court dismissed an appeal seeking to revive a Kshs. 33 million counterclaim filed in a magistrate's court that had no power to hear claims that large.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection on res judicata was merited
The preliminary objection was misplaced because res judicata requires evidence to establish its elements and should be raised by substantive application
Applying Section 7 of the Civil Procedure Act, the court held that raising the bar of res judicata requires reference to the pleadings and decisions of the former suits to establish whether the same issue was heard and finally determined between the same parties. Since these matters need to be established through evidence, a preliminary objection raising a pure point of law, as defined in Mukisa Biscuit, was inappropriate. The objection had also not attached the referenced pleadings.
Whether the trial magistrate erred in holding he lacked pecuniary jurisdiction and striking out the counterclaim
The trial court did not err; it lacked jurisdiction over the Kshs. 33,035,772 counterclaim under Section 7(1)(a) of the Magistrates' Court Act, and the reference to the Kshs. 14,650,000 counterclaim in the extracted order was a curable slip
The trial court had correctly found that a counterclaim of Kshs. 33,035,772 exceeded the Chief Magistrate's Kshs. 20 million pecuniary limit. The mix-up of parties led to the extracted order wrongly referring to the Kshs. 14,650,000 counterclaim as struck out. That clerical error could be corrected by the trial court under Section 99 of the Civil Procedure Act, as it did not alter the substance or ratio of the decision.
Whether the suit in CMCC No. 10717 of 2018 should be transferred to the High Court
The prayer for transfer could not be granted because the counterclaim was filed in a court lacking pecuniary jurisdiction and transfer orders lie only with the High Court
The court accepted the principle that a subordinate court cannot transfer a matter upward; only the High Court can transfer suits. Since the counterclaim was filed in a court without pecuniary jurisdiction, the prayer to transfer the suit from the lower court to the High Court on appeal could not be granted. The court also noted earlier decisions in ELC Misc. E011 of 2022 and COA Appl. E267 of 2022 refusing to sanctify the incompetent suit.
Legal principles established
#- Res judicata cannot be raised by way of preliminary objection where its elements require ascertainment through evidence; it should be raised through a substantive application with pleadings and decisions annexed
- Res judicata's five essential elements under Section 7 of the Civil Procedure Act are stipulated in conjunctive, not disjunctive, terms
- An order for transfer of a suit from a subordinate court can only be made by the High Court, not by the subordinate court itself
- An error in an extracted order that does not change the substance or ratio decidendi of the ruling is correctable under the slip rule in Section 99 of the Civil Procedure Act
Court orders
#- 1.The Respondents' preliminary objection on res judicata is dismissed as misplaced
- 2.The appeal is dismissed
- 3.Each party to bear their own costs of the appeal
- On appeal from
- Chief Magistrate's Court, Milimani
- CMCC No. 10717 of 2018
- Jurisdiction invoked
- Appellate jurisdiction over subordinate court rulings; appellants invoked Article 165(3)(e) of the Constitution, Section 78(2) of the Civil Procedure Act and Order 42 Rule 32 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- In re Estate of Khan (Deceased) (Succession Cause E119 of 2025) [2026] KEKC 2 (KLR)[2026] KEKC 2 (KLR)3 Jun 2026
Cite this brief
#Cite this brief
Caselaw, "Kariuki & another v Nyotta & another (Environment and Land Appeal E127 of 2022) [2024] KEELC 1620 (KLR)", Case Analysis (2024). Appeal from Milimani Chief Magistrate's Court Civil Suit No. 10717 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1620/eng@2024-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.