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ELCDismissedELC Case (Mombasa), suit filed by Plaint dated 9th June 2009 (number not stated in judgment)· [2024] KEELC 4511 (KLR)

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)

Environment and Land Court
30 May 2024
6,654 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The 2nd Defendant, Bernard Atati, raised a preliminary objection dated 18th March 2024 seeking dismissal of the Plaintiff's suit on the ground that it was res judicata, having been heard and determined in Mombasa High Court Misc. Judicial Review No. 24 of 2011, contrary to Section 7 of the Civil Procedure Act, Cap 21. The Plaintiff, through the Office of the Ethics and Anti-Corruption Commission, opposed the objection as frivolous, defective and an abuse of process, arguing that the JR proceedings merely questioned the Registrar of Titles' revocation of the 2nd Defendant's titles, whereas this suit - filed by plaint in June 2009 - alleges fraudulent, illegal and irregular allocation of the suit property and seeks declarations, rectification of the register and a permanent injunction, reliefs the Plaintiff was not party to litigate in the JR suit. The court framed three issues: whether the objection met the threshold of a preliminary objection on a pure point of law; whether the suit was res judicata to the JR suit; and costs. Applying Mukisa Biscuits and related authorities, the court found the objection rested on disputed facts requiring evidence and probing of pleadings, and so failed 'dead on arrival' as a preliminary objection. On res judicata, the court held that judicial review proceedings are supervisory and limited, cannot resolve contested facts, and did not constitute a final determination on the merits of the issues in this suit; the parties, causes of action and reliefs differed. The court dismissed (overruled) the preliminary objection, awarded the Plaintiff costs to be borne by the 2nd Defendant before the next hearing, and maintained the hearing dates of 23rd and 24th July 2024, reserving 15th October 2024 for judgment.

Key legal issues

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01

Whether the res judicata objection could properly be raised by way of preliminary objection

Holding

No - the objection was of an essentially factual nature and failed the Mukisa Biscuits threshold

Reasoning

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.

p. 8
02

Whether the suit is res judicata to Mombasa High Court Misc. Judicial Review No. 24 of 2011

Holding

No - the parties, issues and reliefs differed, and judicial review did not finally decide the issues in the suit

Reasoning

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.

p. 11
03

Who bears the costs of the preliminary objection

Holding

The Plaintiff, costs to be paid by the 2nd Defendant

Reasoning

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.

p. 12

Legal principles established

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  • 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

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  1. 1.The Preliminary objection dated 18th March, 2023 is found to lack merit and is overruled with costs
  2. 2.Hearing dates of 23rd and 24th July, 2024 to be maintained accordingly
  3. 3.15th October, 2024 reserved for delivery of judgment
  4. 4.Costs of the Preliminary objection awarded to the Plaintiff, to be borne by the 2nd Defendant before the next hearing date

Authorities

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Legislation

  • Civil Procedure Act, Cap 21Section 7
  • Civil Procedure Act, Cap 21Sections 1A and 1B
  • Civil Procedure Act, Cap 21Section 27 (and 27(1))
  • Civil Procedure Rules, 2010Order 2 Rule 9
  • Civil Procedure Rules, 2010Orders 19 and 51
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 162
  • Environment and Land Court ActSection 13

Cases cited (20)

  • Mukisa Biscuits Manufacturing Company Ltd - Versus - West End Distributers Ltd
    (1969) EA 696
  • Margaret Njeri Gitau - Versus Julius Mburu Gitau & 2 Others
    [2022] eKLR, ELC Case No. 15 of 2022
  • Muranga and Henry Wanyama Khaemba - Versus Standard Chartered Bank Ltd & Another
    (2014) eKLR
  • Robert Ayasi & 2 others - Versus - The Speaker of Nairobi City National County Assembly & Another
    [2017] eKLR
  • John Florence Maritime Services Limited & Another - Versus - Cabinet Secretary Transport & Infrastructure & 3 Others
    [2021] KESC 39 (KLR) (Civ), Supreme Court Petition 17 of 2015
  • Nicholas Njeru - Versus - The Attorney General & 8 Others
    Civil Appeal No. 110 of 2011 [2013] eKLR
  • Nitin Properties Ltd - Versus - Jagjit S. Kalsi & another
    Court of Appeal No. 132 of 1989 [1995-1998] 2 EA 257
  • United Insurance Company LTD - Versus - Scholastica A Odera
    Kisumu HCC Appeal No. 6 of 2005 [2005] LLR 7396
  • Independent Electoral & Boundaries Commission - Versus - Jane Cheperenger & 2 others
    Civil Application No. 36 of 2014 [2015] eKLR
  • In the matter of Siaya Resident Magistrate Court Kisumu
    HCC Misc. App No. 247 of 2003
  • Christopher Kenyariri - Versus - Salama Beach
    (2017) eKLR
  • E.T - Versus - Attorney General & Another
    (2012) eKLR
  • Omondi - Versus - National Bank of Kenya Limited and Others
    (2001) EA 177
  • Njangu - Versus - Wambugu and another
    Nairobi HCCC No. 2340 of 1991 (unreported)
  • Republic - Versus - National Transport & Safety Authority & 10 others Ex-Parte James Maina Mugo
    [2015] eKLR
  • Ware Transport Limited - Versus - Third Engineering Bureau of China City Construction Group Co Ltd; Tiba Freight Forwarders Limited (Third party)
    [2024] KEELC 1550 (KLR), Environment & Land Case 252 of 2021 (7 March 2024)
  • Tee Gee Electrics and Plastics Company Limited - Versus - Kenya Industrial Estates Limited
    [2005] KLR 97; LLR CAK 6880
  • Jasbir Rai Singh - Versus - Tarchalan Singh
    eKLR (2014)
  • Cecilia Karuru Ngayo - Versus - Barclays Bank of Kenya Limited
    eKLR (2014)
  • Morgan Air Cargo Limited - Versus - Evrest Enterprises Limited
    [2014] eKLR
Jurisdiction invoked
Article 162 of the Constitution of Kenya and Section 13 of the Environment and Land Court Act

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, "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.