Kenya Anti – Corruption Commission v Lobo & Desa (Sued as Legal Representative/ Administrator of the Estate of Paul Lobo Benard Atati) & another (Environment & Land Case 175 of 2009) [2024] KEELC 4511 (KLR)
The bottom line
#Kenya's land court ruled a corruption-related land suit could proceed, rejecting the argument that earlier judicial review proceedings had already settled the matter.
What this practically means
#Executive summary
#Key legal issues
#Whether the res judicata objection could properly be raised by way of preliminary objection
No - the objection was of an essentially factual nature and failed the Mukisa Biscuits threshold
The court restated the test that a preliminary objection must be a pure point of law argued on assumed facts. Because determining whether the suit was res judicata would require probing the pleadings, parties, relief and evidence of both suits, the objection involved disputed facts and could not succeed as pleaded; the proper route was a notice of motion with affidavits.
Whether the suit is res judicata to Mombasa High Court Misc. Judicial Review No. 24 of 2011
No - the parties, issues and reliefs differed, and judicial review did not finally decide the issues in the suit
The JR suit challenged the Registrar of Titles' revocation of the 2nd Defendant's titles as ultra vires, while this suit alleges fraudulent and irregular allocation and seeks declarations, rectification of the register and a permanent injunction - reliefs only the ELC can grant. The Plaintiff was not a party to the JR proceedings, and judicial review is ill-equipped to resolve contested facts requiring viva voce evidence.
Who bears the costs of the preliminary objection
The Plaintiff, costs to be paid by the 2nd Defendant
Costs follow the event under Section 27 of the Civil Procedure Act, subject to the court's discretion. Having failed to convince the court on res judicata and having participated in the hearing of the objection, the 2nd Defendant was ordered to bear the Plaintiff's costs before the next hearing date.
Legal principles established
#- A preliminary objection must raise a pure point of law on the assumption that the facts pleaded by the other side are correct; it cannot be raised where facts must be ascertained or where judicial discretion is sought
- Res judicata applies only where the former suit was heard and finally decided on the merits between the same parties under the same title
- Judicial review proceedings, being supervisory and limited to the legality of decision-making, cannot constitute res judicata for disputes requiring findings of fact on the merits
Court orders
#- 1.The Preliminary objection dated 18th March, 2023 is found to lack merit and is overruled with costs
- 2.Hearing dates of 23rd and 24th July, 2024 to be maintained accordingly
- 3.15th October, 2024 reserved for delivery of judgment
- 4.Costs of the Preliminary objection awarded to the Plaintiff, to be borne by the 2nd Defendant before the next hearing date
- Jurisdiction invoked
- Article 162 of the Constitution of Kenya and Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Anti – Corruption Commission v Lobo & Desa (Sued as Legal Representative/ Administrator of the Estate of Paul Lobo Benard Atati) & another (Environment & Land Case 175 of 2009) [2024] KEELC 4511 (KLR)", Case Analysis (2024). ELC Case (Mombasa), suit filed by Plaint dated 9th June 2009 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4511/eng@2024-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.