Kamula v Odembo & another (Enviromental and Land Originating Summons E028 of 2025) [2025] KEELC 7191 (KLR)

Section 7 of the Civil Procedure Act requires the former suit to have been directly and substantively in issue, between the same parties, under the same title, before a competent court, and heard and finally decided. The Respondents produced only the order of 25th April 2018 dismissing ELC 109 of 2013 for want of prosecution. Without the pleadings and proceedings, the court could not compare the suits or confirm final determination.

Relying on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd, a preliminary objection must be based on points of law which have been pleaded or flow from the pleadings. The grounds on res judicata and limitation required evidence to prove the pendency, content and outcomes of the former suits, which could not be resolved on the objection alone.

Counsel for the Applicant relied on Raila Odinga & Others v IEBC & Others for the proposition that adjudicative powers are generally exercised once, but argued that since the instant summons had not been found res judicata, the doctrine had no application. The court, having dismissed the preliminary objection, implicitly accepted this position.

It was submitted that the Applicant brought the Originating Summons for her personal adverse possession claim, unconnected to the previous proceedings in which her deceased husband Kamula Sudi was a party. The court did not disturb this position in dismissing the objection.