Sempeyo & 3 others v Lemanyi & 9 others; County Government of Kajiado

RULING (In respect of the Preliminary Objection dated 13th August 2024 contesting the Court’s jurisdiction to entertain the Petition) Introduction 1. What is before this Honourable Court for determination is the Notice of Preliminary Objection dated 13th August 2024, led by the law rm of Serpepi, Sintoyia & Associates Advocates on behalf of the 1st to the 5th Respondents. 2. The Respondents seek to have the Petition dated 17th May 2024 struck out with costs to the Respondents on the grounds that the suit is misconceived, incompetent, an abuse of the court process and a complete nullity. 3. The Preliminary Objection is founded on several points of law, specically challenging the jurisdiction of this Court and the validity of the Petitioners' claim over the suit properties. The gravamen of the objection is as follows: 4. 1. That the land forming the subject matter of this Petition was declared an Adjudication Section by the Oce of the 8th Respondent on 15th November 1970, being Olkiramatian Registration Section. 2. That the Land Adjudication Ocer Kajiado District publicized that any individual or group claiming any right or interest in any land within Olkiramatian Adjudication Section was to present his/her claim thereto, to the recording ocer at Elangata Wuas according to Maasai customary law within 60 days from 15th November 1970. 3. That upon completion of the land adjudication process over the Olkiramatian Adjudication Section, the preparation of the Adjudication Register(s) and the subsequent registration of the 4th & 5th Respondents and other members of the Olkiramatian Adjudication Section who are not parties in this Petition, as absolute proprietors of Title Numbers Kajiado/Olkiramatian/5; Kajiado/Olkiramatian/6; Kajiado/Olkiramatia/7; and Kajiado/Olkiramatian/8 respectively pursuant to the provisions of the Registration of Land Act, any clan rights over the suit properties assuming that they ever existed were thereby extinguished. 4. That in any event, the Petition herein is res judicata as the members of the Purko Clan whom the Petitioners purport to present, presented before this very court a similar Petition being Petition No. 12 of 2017 which Petition was dismissed in November 2023. 5. That by reasons of the aforesaid, this Petition and the entire proceedings herein, are misconceived, incompetent and an abuse of the court process and a complete nullity. 6. That further, by reason of the aforesaid, this Honorable Court lacks jurisdiction to entertain this suit and the entire proceedings herein, which should therefore be struck out with costs to the Respondents. Parties were directed to canvas the application by way of written submissions. They duly complied and the said submissions have been considered in the writing of this ruling. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18598/eng@2025-12-18 2

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Analysis and Determination 5. The singular issue for determination is whether the Respondents' application qualies as a Preliminary Objection capable of disposing of this suit at this stage. 6. The jurisprudence governing Preliminary Objections in this jurisdiction is settled. In the locus classicus case of Mukisa Biscuit Manufacturing Co. Ltd –vs– West End Distributors (1969) EA 696, Law JA dened the threshold of a preliminary objection as follows: “ So far as I am aware, 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.” 7. Crucially, Sir Charles Newbold P. in the same matter added the vital caveat to the eect that: “ A Preliminary Objection cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.” 8. The Respondents’ primary ground is that this suit is res judicata due to the alleged dismissal of Petition No. 12 of 2017. However, for this Court to determine whether the doctrine of res judicata applies, it must conduct a factual inquiry. The Court must examine the previous decision, the pleadings, the parties, and the issue(s) raised in the former suit to ascertain if the issue(s) directly and substantially in issue in the former suit are directly and substantially in issue in the current suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court of competent jurisdiction, and has been heard and nally decided by such court. 9. This necessity for factual verication takes the matter outside the realm of a "pure point of law." This position was emphatically stated by the High Court in Henry Wanyama Khaemba v Standard Chartered Bank (K) Ltd & Another [2014] eKLR, which cited with approval the decision of Ojwang J (as he then was) in Oraro v Mbaja [2005] eKLR, where the Learned Judge held that: “ … I think the principle is abundantly clear. A preliminary objection correctly understood is now identied as, and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the Court should allow to proceed. I am in agreement that where a court needs to investigate facts, a matter cannot be raised as a preliminary point.” 10. In the instant case, the Respondents ask this Court to make a nding of res judicata without the benet of the previous record being formally adduced in evidence and tested. The Petitioners contest the similarity of the issues in the two matters. Consequently, the facts are not agreed on. 11. This reasoning is bolstered by the Supreme Court in John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others (Petition No. 17 of 2015). The Apex Court held that where the issue of res judicata is raised, it typically requires material determination by a court of law through the presentation and examination of material evidence. As https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18598/eng@2025-12-18 3

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such, unless the facts are admitted, res judicata is not a suitable ground for a Preliminary Objection as dened in Mukisa Biscuit case. 12. Similarly, the Respondents' objections regarding Limitation of Actions and the Land Adjudication Act are intertwined with the Petitioners' factual averments of fraud and the timing of the removal of their names from the register. Determining whether the suit is time-barred under Section 26 of the Limitation of Actions Act requires ascertaining when the alleged fraud was discovered; a contested question of fact that cannot be resolved summarily. 13. It is clear that the Respondents' Notice of Preliminary Objection does not raise pure points of law but rather issues deeply immersed in disputed facts that require the adducing of evidence. The Respondents are inviting the Court to embark on a factual inquiry, which is impermissible at this preliminary stage. 14. Accordingly, I nd that the Preliminary Objection dated 13th August 2024 is misconceived and lacks merit. Consequently, the Preliminary Objection is hereby dismissed. The costs of the Preliminary Objection shall be in the cause. It is so ordered. DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 18TH DAY OF DECEMBER 2025. M.D. MWANGI JUDGE In the virtual presence of: Mr. Serpepi for the 1st – 5th Respondents Mr. Nganyi for the Petitioners (h/b for Ms. Grace Katasi) N/A by the 6th – 10th Respondents Court Assistant: Mpoye M.D. MWANGI JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18598/eng@2025-12-18 4

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