Emai (Suing on his Behalf and as the Leg. Rep. of Jospeh Obose Okuma & Vincent Emayi Okasiaka) v Manyuru (Sued as the Leg. Rep. of Joseph Manyuru Iwuoni) & 5 others (Environment & Land Case 33 of 2017) [2024] KEELC 3642 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether res judicata can be raised by way of preliminary objection
Yes. Res judicata under Section 7 of the Civil Procedure Act is a pure point of law and may be raised by notice of preliminary objection; no formal application or viva voce evidence is required, and the plea having been pleaded in the defence, the plaintiff was on notice.
The court relied on Mukisa Biscuit for the definition of a preliminary objection and found res judicata to be a pure point of law. Counsel's submission that the plea had to be raised by application was rejected, the court citing John Florence Maritime Services where the Court of Appeal held it was not aware of any legal edict requiring a formal application. The plea was also pleaded in the defence as far back as 8th July 2009, putting the plaintiff on notice.
Whether the suit is res judicata given Bungoma H.C.C.C. No. 11 of 2008 and Kisumu Civil Appeal No. 15 of 2010
No. Although the same suit land was in issue in the former suit which was heard and finally decided by competent courts, the parties are not the same and no privity was shown; Explanation 6 to Section 7 was also inapplicable.
The court compared the parties: only the 2nd and 3rd Defendants were plaintiffs in Bungoma H.C.C.C. No. 11 of 2008; Joseph Obose Okuma and Vincent Emayi Okasiaka, on whose estates the plaintiff sues, were not parties, nor were the 1st, 4th, 5th and 6th Defendants. Privity means a legally recognized connection or mutuality of interest, which was not demonstrated. The Bungoma plaint did not disclose litigation over a public or private right claimed in common so as to engage Explanation 6. Whether Amayi Okumu Kasiaka and Vincent Emayi Okasiaka are the same person was left to trial.
Whether the suit is vexatious, frivolous, scandalous or an abuse of the process of the Court
No. Having considered all the pleadings, the court was not persuaded that the plaintiff's pleadings bear those characteristics; the issues raised merit a full trial, and Order 2 Rule 15(1)(b) and (d) jurisdiction is exercised sparingly.
The court set out the definitions of vexatious, frivolous, scandalous and abuse of process from Black's Law Dictionary and Order 2 Rule 15(1)(b) and (d), and the guidance in Yaya Tours and Dt Dobie that the jurisdiction to dismiss a suit as abusive must be exercised sparingly and only in exceptional cases and with caution. Applying those principles to the pleadings, the court found the claims plausible enough to warrant trial and dismissed that limb of the objection.
Legal principles established
#- A plea of res judicata is a pure point of law that may properly be raised by way of preliminary objection, and need not be raised by formal application.
- The elements of res judicata under Section 7 of the Civil Procedure Act must be satisfied conjunctively, including that the former suit was between the same parties or parties under whom they or any of them claim.
- Res judicata requires privity or identity of parties, not merely identity of subject matter; where the parties and privity are contested, the doctrine is inapplicable.
- A court should act cautiously before dismissing a suit as an abuse of process; a claim however implausible must be allowed to proceed to trial unless the defendant demonstrates shortly and conclusively that it is bound to fall.
Court orders
#- 1.The Notice of Preliminary Objection dated 19th January 2024 is dismissed
- 2.Costs of the preliminary objection to the Plaintiff
- Jurisdiction invoked
- Original jurisdiction over land disputes; decision on a Notice of Preliminary Objection dated 19th January 2024 arising in the suit
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Emai (Suing on his Behalf and as the Leg. Rep. of Jospeh Obose Okuma & Vincent Emayi Okasiaka) v Manyuru (Sued as the Leg. Rep. of Joseph Manyuru Iwuoni) & 5 others (Environment & Land Case 33 of 2017) [2024] KEELC 3642 (KLR)", Case Analysis (2024). Busia H.C.C.C. No. 16 of 2009 (as transferred to the Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3642/eng@2024-05-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.