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ELCDismissedNot stated in extract (suit property Kwale/Msambweni A/2927; referred to former suit ELC Kwale No 4 of 2021 [formerly MSA ELC 25 of 2015])· [2024] KEELC 3781 (KLR)

Samchi Telecommunications Limited v Abdalla & 5 others (Environment & Land Case 29 of 2023) [2024] KEELC 3781 (KLR)

Environment and Land Court
7 March 2024
ADA.E DENA
1,061 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan land court ruled you cannot kill a lawsuit on res judicata grounds through a preliminary objection—you must file a formal application with evidence.

What this practically means

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Executive summary

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The 2nd to 6th Defendants raised a preliminary objection dated 22/5/2023 seeking striking out of the Plaintiff's suit as res judicata, contending that the issues were directly and substantially in issue and finally determined in ELC Kwale No 4 of 2021 (formerly MSA ELC 25 of 2015), Socaf & Company v John Maina Njoroge, between the same parties. The Plaintiff's suit, instituted by plaint dated 4/4/2023, claimed that he purchased the suit property Kwale/Msambweni A/2927 from the 1st Defendant by sale agreement dated 28/3/2013 after due diligence and an official search, and that the property was thereafter fraudulently sold to other parties with the assistance of the other Defendants; he sought, among other reliefs, Kshs 51,451,560.00 as total expenditure in acquiring the property. The court first considered whether the objection was properly raised, applying the Supreme Court's test in IEBC v Jane Cheperenger that a preliminary objection must be a pure point of law on facts assumed correct, and not dependent on contested facts or evidence. Applying Section 7 of the Civil Procedure Act, the court held that determining res judicata requires examination of the facts, pleadings and proceedings in the former suit, with evidence adduced by the party alleging it, so the objection ceases to be a pure point of law. The court also followed George Kamau Kimani v County Government of Trans Nzoia, which held that res judicata should be raised by notice of motion with pleadings annexed. The preliminary objection was dismissed with costs to the Plaintiff; the suit itself remains for trial.

Key legal issues

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01

Whether a preliminary objection on res judicata is a pure point of law

Holding

It is not; proof of the former suit's pleadings, proceedings and final determination requires evidence, so the objection ceases to be a pure point of law

Reasoning

Section 7 of the Civil Procedure Act requires that the matter was directly and substantially in issue in a former suit and was heard and finally decided. Establishing this necessitates examination of the facts, pleadings and proceedings in the former suit, with evidence adduced by the party alleging res judicata. Such inquiry cannot be conducted on a preliminary objection premised on assumed facts.

p. 3
02

Test for a proper preliminary objection

Holding

The court applied the Supreme Court test in IEBC v Jane Cheperenger: a preliminary objection must be a pure point of law capable of disposing of the entire suit, on agreed or assumed facts

Reasoning

The court adopted the Supreme Court's criteria that a preliminary objection must rest on a pure point of law, presume the correctness of the pleadings of the opposite side, and cannot be entertained where facts are disputed, liable to be contested, require proof through evidence, or involve exercise of judicial discretion. Since res judicata required evidence here, the objection failed that test.

p. 2

Legal principles established

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  • The doctrine of res judicata cannot be raised by way of preliminary objection because its determination requires examination of pleadings, proceedings and evidence
  • Res judicata should be raised by notice of motion with pleadings annexed

Court orders

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  1. 1.The preliminary objection dated 22/5/2023 is dismissed
  2. 2.Costs of the preliminary objection awarded to the Plaintiff

Authorities

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Legislation

  • Civil Procedure Code / Civil Procedure ActSection 7; Order 9

Cases cited (2)

  • Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 others
    Civil Application No. 36 of 2014 [2015] eKLR
  • George Kamau Kimani & 4 Others v County Government of Trans Nzoia & Another
    (2014) eKLR
Jurisdiction invoked
Not expressly stated; suit before the Environment and Land Court

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Samchi Telecommunications Limited v Abdalla & 5 others (Environment & Land Case 29 of 2023) [2024] KEELC 3781 (KLR)", Case Analysis (2024). Not stated in extract (suit property Kwale/Msambweni A/2927; referred to former suit ELC Kwale No 4 of 2021 [formerly MSA ELC 25 of 2015]). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3781/eng@2024-03-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.