Mweu v Daystar Multipurpose Co-operative Society Limited (Environment & Land Case E008 of 2023) [2025] KEELC 4736 (KLR)

Objections is the case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd. (1969) EA 696, where the Court held as follows: "a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration… a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion”. 5. Similarly, the Supreme Court in Independent Electoral & Boundaries Commission vs Jane Cheperenger & 2 Others (2015) eKLR made the following observation as relates to Preliminary Objections: "… The true preliminary objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection—against profiigate deployment of time and other resources. And secondly, it serves the public cause, of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement. It is distinctly improper for a party to resort to the preliminary objection as a sword, for winning a case otherwise destined to be resolved judicially, and on the merits.” 6. I find that the issue of limitation and res judicata meets the threshold. 7. The Defendant’s submission is that the suit herein is res judicata to Machakos ELC Suit No. 174 of 2018 (Wanza Kioko Maweu vs Daystar Multipurpose Co-operative Society Limited). Section 7 of the Civil Procedure Act Provides "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 finally decided by such court.” 8. Expounding further on the essence of the doctrine this Court in John Florence Maritime Services Limited & Another vs Cabinet Secretary for Transport and Infrastructure & 3 Others (2015) eKLR pronounced itself as follows; "The rationale behind res-judicata is based on the public interest that there should be an end to litigation coupled with the interest to protect a party from facing repetitive litigation over the same matter. Res-judicata ensures the economic use of court’s limited resources and timely termination of cases. Courts are already clogged and overwhelmed. They can hardly spare time to repeat themselves on issues already decided upon. It promotes stability of judgments by reducing the possibility of inconsistency in judgments of concurrent courts. It promotes confidence in the courts and predictability which is one of the essential ingredients in maintaining respect for justice and the rule of law. Without res judicata, the very essence of the rule of law would be in danger of unraveling uncontrollably.” 9. I have perused the pleadings of Machakos ELC Suit No. 174 of 2018 (Wanza Kioko Maweu vs Daystar Multipurpose Co-operative Society Limited) and find that the parties are the same and the subject https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4736/eng@2025-06-24 2

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matter is the same. In a judgement delivered by Justice A. Nyukuri dated 4th October 2023 the court found that the plaintifi had failed to prove her case on the required standard and dismissed the same with costs to the 1st defendant who is the defendant in the instant suit. That suit was brought in by way of a plaint while the current one is an originating summons. Litigation must come to an end and if the plaintifi was dissatisfied with the earlier decision she should have filed an appeal and not a fresh suit. Having found so there would be no need to consider the issue of limitation. I find this matter is res judicata and not merited and is struck ofi with costs to the defendant. 10. It is so ordered. DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 24TH DAY OF JUNE 2025. N.A. MATHEKA JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4736/eng@2025-06-24 3

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