Mwinzi & 217 others v Tana & Athi Rivers Development Authority & another (Environment & Land Petition 18 of 2021) [2024] KEELC 3530 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the court lacks jurisdiction to stay execution of the Embu ELC judgment
Ground not determined because the 1st Respondent did not attach the judgment or decree relied upon
The 1st Respondent objected to the court's power to stay execution of the 12.03.2020 judgment and 19.08.2020 decree in Embu ELC Suit No. 148 of 2017 but did not attach the judgment or decree, leaving the court with no material to evaluate the claim of lack of jurisdiction.
Whether the petition is res judicata / defective under Sections 7, 8, 34 and 63 CPA and Order 22
Not upheld; res judicata cannot be established on a preliminary objection without the prior pleadings, judgment and decree
Relying on Beach Villas Limited v Mogeni, the court held that a party asserting res judicata must place the documents of the previous suit before the court. The 1st Respondent failed to attach the judgment, decree or proceedings in Embu ELC No. 148 of 2017, so the court could not determine the issue preliminarily.
Whether the petition amounts to gross abuse of court process
Not a pure point of law; improperly raised as a preliminary objection
Determining abuse of process requires ascertaining and probing evidence on contentious issues, which exceeds the limited scope of preliminary objections. The ground is therefore not capable of disposing of the matter without calling evidence and is improperly raised.
Whether the court is functus officio
Ground not upheld as the 1st Respondent failed to avail the proceedings and judgment of ELC No. 148 of 2017
The court declined to determine functus officio blindly. Without the pleadings, judgment and proceedings from the Embu suit, it could not establish that ownership and occupancy of L.R Nos. 24670, 28671 and 12621 had been conclusively adjudicated.
Legal principles established
#- A preliminary objection may only be raised on a pure point of law, on the assumption that all facts pleaded by the other side are correct
- A party raising res judicata as a preliminary objection must place before the court the documents of the previous suits; otherwise the issue must be dealt with at the hearing
- Abuse of court process is not a pure point of law where ascertaining it requires probing evidence
Court orders
#- 1.The Preliminary Objection dated 27.10.2021 is dismissed with costs to the Petitioners
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya and Section 13(3) of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwinzi & 217 others v Tana & Athi Rivers Development Authority & another (Environment & Land Petition 18 of 2021) [2024] KEELC 3530 (KLR)", Case Analysis (2024). ELC Petition No. 18 of 2021 (OJ). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3530/eng@2024-01-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.