Mbogo v Obago & 3 others

3. The Defendant entered Appearance and led a Defense. In the Statement of Defence dated the 3rd of January 2024, he denied the contents of the claimant’s claim. He added that parcel No. 683 was registered in his father's name. He was young, that is to say, 29 years old at the time of the institution of this suit. He added that they had lived on this land all their years. Further that when his father died, he was buried in the city land. That there were succession proceedings in relation to the parcel of land. 4. Of importance, for purposes of this preliminary objection before me, the Defendant added at paragraph 4 (i) and (j) that prior to the institution of the instant case, the plainti had led two other cases, being. Migori ELC. No. 32 of 2017 and ELC No. 101 of 2018 which were determined against him. Further that in relation to ELC No. 101 of 2018 the 1st Defendant’s family, even forgave the plainti on the issue of costs because he was an old man. He added, at paragraph 5 of the Plaint the same content of the existence of the two suits referred to above. 5. Soon after the ling of the defense, the 1st Defendant raised a preliminary objection to the instant suit. The preliminary objection was dated 29th October 2024. He raised it on the following grounds: 1. That the plainti had already sued the same parties in the whole ELC case number 101 of 2018. 2. That Migori ELC case number 101 of 2018 was dismissed on 6th September 2020 for non attendance or want of prosecution. 3. The plainti moved the court for reinstatement of the said suit and it was reinstated as per the ruling delivered in it on 31st October 2022. 4. The suit was later dismissed again for want of prosecution or through orders granted on the 30th of May 2023 and issued on 23rd. May 2024. 5. The orders of dismissal had never been set aside. 6. The parties to this case, the cause of action and the subject property or subject of the suit were the same as those in Case No. 101 of 2018. 7. As a result, the matter was res judicata and should be struck out. 5. The preliminary objection was disposed of by way of written submissions. The rst defendant led his written submissions dated 20th January 2024. In them, he gave the history of Migori No. 101 of 2018, which, indeed, shows that the Plainti in this case was the same plainti in that matter. The heading thereof was James Atio Mogo vs. Samuel Otieno Obago as the 1st Defendant besides one Felix Omondi Obago as the 2nd Defendant, and the 3rd and 4th defendants in this matter as the 3rd to 4th defendants respectively. He summed it up that that matter was dismissed. He relied on Section 7 and 8 of the Civil Procedure Act to argue that this matter was res judicata and therefore the court should dismiss it. 6. Immediately before the delivery of this instant suite. Specically, on the 30th of October 2025, the plainti led a Notice to Act in person which was dated the same date. Analysis and Determination 7. This Court has considered the preliminary objection, the law, the pleadings of the parties, and the submissions herein. The sole main issue for determination is whether the Objection is merited. Attendant to it is who to bear the costs of either the Objection or both the objection and the suit of the Preliminary Objection succeeds. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18588/eng@2025-11-28 2

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8. The nature and basis of a preliminary objection was well articulated by the Court of Appeal in the celebrated case of Mukisa Biscuit Manufacturing Co. Ltd. V West End Distributors Ltd. [1969] EA 696, where it held: “ … 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.” 9. In the judgment of Sir Charles Newbold JA stated, further as follows: “ 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 had to be ascertained or if what is sought is the exercise of judicial discretion (emphasis added)” 10. This court has Carefully considered the preliminary objection. It is clear that. The court can only rely on the pleadings of the parties. That is to say, the plant and the defence, in order to determine whether, indeed, the preliminary objection is merited. I have perused the Plaint. The plainti claims a portion of land from the Defendant, which land he avers was registered in his name. In the plaint, the plainti pleaded that prior to the institution of the instant suit the Plainti led two suits which were determined. 11. Further, I have looked at the plainti’s pleadings. There is no denial by way of any other pleadings that the suits, as specied by the plainti, existed and were determined, and even the alleged costs due in one of them were forgiven of the Plainti. Thus, from the pleadings, it is clear to me, and I nd so, that previously there were two similar suits led between the parties, over the same subject, and they were determined. Therefore, to sustain the instant one would be contrary to the law, particularly Section 7 of the Civil Procedure Act. The objection is upheld, and the suit is dismissed with costs to the 1st Defendant only. The said defendant shall have the costs of the preliminary Objection as well. 12. Orders accordingly. RULING DATED, SIGNED AND DELIVERED ELECTRONICALLY VIA THE TEAMS PLATFORM THIS 28TH DAY OF NOVEMBER 2025. HON. DR. IUR NYAGAKA JUDGE In the presence of Ms. Migele Advocate for the Plainti Mr. Ngani Advocate for Adoyo Advocate for the 1st Defendant No appearance for the other defendants https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18588/eng@2025-11-28 3

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