Salah v Otieno & 4 others

Plainti/ Respondent’s Submissions 4. The plainti in his submissions addressed the issue of whether the suit is res judicata as outlined under section 7 of the Civil Procedure Act and the elements therein. 5. It was his submission that the parties in the instant suit and their title is dierent from the former suits and that the plainti in his plaint as averred had reasonable cause of actions against the defendants and the orders the plainti was seeking were jointly and/or severally against the defendants. 6. He further submitted that the parties never litigated under the same title since the plainti had never litigated over this specic title or any other title for that matter and that the jurisdiction of a court could neither be implied nor conferred by agreement of the parties by judicial graft or legal sophistry. 1st and 2nd Defendants’ Submissions 7. The 1st defendant while addressing the merits of the instant PO submitted that it is common ground that a preliminary objection cannot be raised on disputed facts. He however maintained that the instant PO hinged on the doctrine of res judicata would require the probing of evidence and hence is not a proper preliminary objection as required in law. 8. He further submitted that the issue of ownership of the suit land had not been determined by any court of competent jurisdiction between the same parties as in the instant suit and thus urged the court to dismiss the same with costs. 9. The 2nd defendant in his submissions submitted mainly on the issue of whether the notice of preliminary objection was premised as pure point of law and the factual surrounding of the suit. He submitted that the plainti in the suit was not a primary party to the former suit but instead was only an objector who was opposing the attachment of his motor vehicle in execution of a decree. 10. He further submitted that no authority was tendered to prove that the 2nd defendant in his former suit was acting on behalf of the plainti as alleged by the applicants. It was his contention that the parties in the said former suit were dierent from the instant suit and that the order sought in the instant suit were dierent from the orders sought in the former suit. 11. In conclusion, he submitted that the instant suit does not contravene section 7 of the Civil Procedure Act and maintained that this honourable court has the jurisdiction to grant the orders sought in the instant suit. Issues For Determination 12. The main issue before this honorable court is to determine and establish whether the notice of preliminary objection dated April 26, 2023 is merited on the grounds of res judicata. 13. The Supreme Court in the case of Aviation and Allied Workers Union Kenya v Kenya Airways Ltd & 3 others (2015) eKLR while discussing the issue of preliminary objection stated as follows; “ Thus, a preliminary objection may only be raised on a pure question of law. To discern such a point of law, the court has to be satised that there is no proper contest as to the facts” 14. The applicant has sought the dismissal of the suit on account of the doctrine of res judicata. It is her claim that there have been similar suits over the same subject matter and the parties herein to wit; Migori High Court succession cause No 126 of 2014, Migori CM Succession Cause No 211 of 2018 https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18636/eng@2023-06-27 2

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and ELC Case No. 126 of 2019. He contends that it is on the basis of the said cases that the jurisdiction of this court to hear and determine the suit has been ousted. 15. Section 7 of the Civil Procedure Act denes what amounts to res judicata as follows; “ No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and nally decided by such court.” 16. The respondents on the other hand maintained that the doctrine of res judicata cannot apply in the instant case. It was the plainti’s contention that they have never litigated over the ownership title of the subject land in the instant suit. Further, it was the 1st and 2nd defendants’ claim that issues raised in the preliminary objection were not pure points of law since in determining whether the matter is res judicata would require the probing of evidence. 17. In determining the issue of res judicata, I am guided by the Court of Appeal decision in the case of The Independent Electoral and Boundaries Commission v Maina Kiai & 5 others, Nairobi CA civil appeal No 105 of 2017 ([2017] eKLR), where it was held that all the elements outlined under section 7 must all be satised conjunctively. The court further stated as follows: “ Thus, for the bar of res judicata to be eectively raised and upheld on account of a former suit, the following elements must be satised, as they are rendered not in disjunctive but conjunctive terms; a) The suit or issue was directly and substantially in issue in the former suit. b) That former suit was between the same parties or parties under whom they or any of them claim. c) Those parties were litigating under the same title. d) The issue was heard and nally determined in the former suit. e) The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.” (See also Invesco Assurance Company Limited & 2 others v Auctioneers Licensing Board & another; Kinyanjui Njuguna & Company & another (interested parties) [2020] eKLR) 18. Further, in the in Suleiman Said Shabhal v Independent Electoral & Boundaries Commission & 3 others [2014] eKLR the court held: “ To constitute res judicata, there must be adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18636/eng@2023-06-27 3

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19. The Supreme Court in addressing the doctrine of res judicata in the case of in John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others (Petition 17 of 2015) [2021] KESC 39 (KLR) (Civ) (6 August 2021) (Judgment) the court held as follows: “ We restate the elements that must be proven before a court may arrive at the conclusion that a matter is res judicata. For res judicata to be invoked in a civil matter the following elements must be demonstrated: a) There is a former Judgment or order which was nal; b) The Judgment or order was on merit; c) The Judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and d) There must be between the rst and the second action identical parties, subject matter and cause of action.” 20. In view of the foregoing, I nd that in determining whether or not the instant suit is indeed res judicata would require an examination of the facts, pleadings and nal judgment in the previous suits to wit, Migori High Court Succession Cause 126 of 2014, Migori CM succession cause No 211 of 2018 and ELC case No 126 of 2019, in order to ascertain whether the issues in dispute are similar to the issues directly in question in the instant suit, whether the claim of ownership in the instant suit was heard and nally determined by a court of competent jurisdiction. This in my view is not a pure point of law as held in the classical case of Mukhisa Biscuit and the Supreme Court decision in Aviation and Allied Workers Union (supra). The same would require examination of fact and exercise of discretion. 21. It is trite law that when a preliminary objection is raised, the same should be capable of disposing the matter without the court having to result to ascertaining the facts from elsewhere. A preliminary objection must not deal with disputed facts and it must not derive its foundation from factual information which stands to be tested by rules of evidence. See Oraro v Mbaja (2005) 1KLR 141 22. The upshot of the above analysis is that the preliminary objection dated April 26, 2023 is not merited and is accordingly dismissed with costs to the plainti /respondent. 23 It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT MIGORI ON 27TH DAY OF JUNE, 2023. MOHAMMED N. KULLOW JUDGE In presence of; ................for the 3rd and 4th Defendants/ Applicants ................for the Plainti/ Respondent ................for the 1st and 2nd Defendants/ Respondents Court Assistant –Tom Maurice/ Victor https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18636/eng@2023-06-27 4

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