Falcon Kenya Limited v Chief Lands Registrar & 7 others

ELC CASE NO.614 OF 2013 2. The grounds are set out on the face of the application and in a supporting affidavit sworn by Abdilahi Muigai Muiruri on 27.7.2026. 3. The 1st Interested Party states that the preliminary objection is premised on the doctrine of Res judicata since there were previous orders, judgments and decisions by a court of competent jurisdiction over the dispute in LR No. 11379/3 spanning several decades, including HCCC No. 1348 of 1972 and HCCC No. 1088 of 2000, copies attached as “AMM-1’’. 4. The application is opposed through a replying affidavit by Samuel Waweru Sworn on 14.8.2026. 5. The record shows that by a ruling dated 11.5.2023, the first interested party was joined to this petition alongside the 4 th, 5th and 6th interested parties, and an order was made that they file replies to the amended petition and a cross-petition within 14 days of service with the amended petition, whereafter ELC petition no 252 of 2019 shall stand withdrawn. Thereafter, an issue arose on legal representation of the interested party. Further a hearing date for 19.2.2025 was given. The matter could not proceed on account of an Page 2| 14

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ELC CASE NO.614 OF 2013 alleged dispute involving directors of the 6th and 7th interested parties. 6. A hearing date of 12.2.2026 was later fixed on 2.7.2025. Later fixed on 18.5.2026, a date was taken for 28.7.2026 by consent of the petitioners and the interested parties. 7. A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of the pleadings and which, if argued as a preliminary point, may dispose of the suit, as was held in Mukisa Biscuit Manufacturing Co. Ltd vs West End Distribution Limited (1969)EA 696. The court said that it cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. 8. In George Orara vs Bava Eston Mbaja NRB, High Court Civil Suit No. 85 of 1992, the court said that a preliminary objection purported to be based on evidentiary foundations that are not agreed or stand to be tested through evidence, as the factual foundations cannot pass as a Preliminary Objection. 9. In IEBC vs Jane Chepengeter & Others (2015) KESC 2 KLR, the court said that a preliminary objection is res judicata as a pure point of law which is argued on the Page 3| 14

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ELC CASE NO.614 OF 2013 assumption that all facts pleaded by the other side are correct and is not point of law if any fact has to be ascertained. 10. The court said that a preliminary objection should be founded on a settled and crisp point of law, to the extent that its application to undisputed facts leads but to one conclusion, that the facts are incompatible with that point of law. 11. The court held that a preliminary objection serves two purposes: one being as a shield for the originator against profligate deployment of time and other resources and secondly as a public cause of sparing scarce Judicial time to be committed only on deserving cases of dispute settlement. 12. What the interested parties raise is that the amended petition suffers from the doctrine of res judicata. 13. In John Florence Maritime Services Ltd and another – vs – Cabinet Secretary Transport and Infrastructure Services and 3 Others (2021) KESC 39 KLR, the dispute had been entertained by the High Court as a Judgement. The Superior Court made a finding that the petition was res judicata. 14. The ruling of the High Court was upheld by the Court of Page 4| 14

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ELC CASE NO.614 OF 2013 Appeal. Page 5| 14

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ELC CASE NO.614 OF 2013 15. At the Supreme Court, the court said that for res judicata to be raised, four elements must be present, namely: a) Former judgments or orders which were final. b) Judgment on the merits. c) Judgment or orders rendered by a competent court over the subject matter and parties. d) There had to be, between the first and 2 nd action, identical parties, subject matter, and cause of action. 16. The court held that the doctrine of res judicata is based on the principle of finality as a matter of public policy, a key pillar on which a judicial system is founded to prevent multiplicity of suits likely to clog the courts, apart from occasioning unnecessary cost to the parties, to ensure that litigation comes to an end where a verdict translates into fruits for one party, and a liability for another, conclusively. 17. The court said that the doctrine applies to constitutional litigation to promote orderly administration of justice and that exemptions to the doctrine may be allowed by the court taking into consideration whether there is a potential for substantial injustice, if a court did not hear the constitutional matter(s) or issue on its merits. Page 6| 14

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ELC CASE NO.614 OF 2013 18. In doing so, the court said it had to look into and examine the entirety of the circumstances as well as address the factors for and against the exercise of such discretionary power and, in the alternative, where a litigant has demonstrated special circumstances warranting the court to make the exception. 19. In IEBC vs Maina Kiai and other (2017) KECA 47 (KLR), the court said that for res judicata to be effectively raised and upheld on account of a former suit, the five elements must be present not in distinctive but conjunctive terms, namely: a) The suit or issue was directly and substantially in issue in the former suit. b) The former suit had to be between the same parties or parties under whom they or any of them claim. c) Those parties were litigating orders the same title. d) The issue was heard and finally determined in the former suit. e) The issue was heard and determined in the former suit. Page 7| 14

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ELC CASE NO.614 OF 2013 f) 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. 20. This court takes judicial notice of the ruling delivered on 12.11.2018, where the interested parties had filed a notice of motion after being added to the petition on 23.7.2015 and responded to the petition through a replying affidavit of the 6th interested party director on 15.10.2015, saying that the matter was conclusively heard and determined in H C C No. 134 of 1992 and 1088 of 2008 upholding the 6 th interested party’s title. 21. The application had sought to strike out the petition as an abuse of the court process, based on the grounds in the replying affidavit. The petitioner opposed the application on several affidavits. Parties filed written submissions dated 24.1.2018, 15.11.2017 and 12.2.2018. 22. The court made a finding that due to the contested issues in the petition and the replying affidavit, it will take a plenary hearing to determine the ownership of the suit property and who among the disputants holds a valid title deed. Page 8| 14

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ELC CASE NO.614 OF 2013 23. The court declined the invitation to determine issues of fraud and forgery as raised by the parties based on affidavit evidence. 24. The doctrine of res judicata in effect allows, a litigant only one bite at the cherry. In KCB Ltd Vs Muiri Coffee Estate Ltd and another (2016) eKLR, the court said that the doctrine prevents a litigant or person claiming under the same title from returning to court to claim a further reliefs not claimed in the earlier action. The burden is on the interested parties to demonstrate the essential ingredients of res judicata, namely identical parties, substantially the same matter, the same title, a competent forum, and a final determination. 25. When the question of res judicata is raised, the court looks at the decision claimed to have settled the issues in question, the entire pleadings and the record of that previous case and the instant case, and whether those are the same in the subsequent case. See KCB vs Muiri (Supra). 26. The court record s h o w s t h a t t h e preliminary objection other than raising the ground does not contain the entire pleadings and records in the previous suits, ruling or judgment. Page 9| 14

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ELC CASE NO.614 OF 2013 27. Where a court needs to investigate facts or evidence to sustain the preliminary objection, the same ceases to be a pure point of law as held in Oraro vs Mbaja (2005) KLR 141. In this instance, the interested parties must call evidence to establish whether or not the issues of fact and law, as raised in their respective pleadings, were heard and determined conclusively and on merit previously. 28. In Litein Tea Factory Co. Ltd and another vs Davis Kiplagat Mutai and others (2015) eKLR, the court said that shaping a preliminary objection needs thought, clarity and care as if it intend to invoke the court’s jurisdiction to determine a case in limine and in a summary manner. 29. In CCK and others vs Bongo Medic Service and others 2014 eKLR, the court said that res judicata encompasses and limits both issues and claims and issues that may have been raised in subsequent proceedings. 30. In Okiye Omtata Okoti and others v A.G and others 2014 eKLR, the court said that the plea of res judicata should only be invoked in constitutional matters in the clearest of cases and where a party is relitigating the same matter before the constitutional court and where the court is called upon to P a g e 10 | 14

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ELC CASE NO.614 OF 2013 re- P a g e 11 | 14

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ELC CASE NO.614 OF 2013 determine an issue between the same parties, and the same subject matter. 31. The court said that the principles must be sparingly invoked in rights-based litigation and where the issues are obvious. 32. Though the doctrine, as held in John Florence Maritime (supra), goes to the roots of the jurisdiction of the court to entertain a dispute, it has to be successively ventilated for it seeks to close the chapters on the disputes. 33. The court also held that there is no legal requirement that its doctrine must be raised formally through an application. The court said that the doctrine must be given a wider interpretation so that two issues in one case may be the same or substantially the same as the previous suits. 34. In these instances, I find the interested parties have failed to meet the threshold for a preliminary objection like res judicata. 35. The preliminary objection dated 27.7.2026 is dismissed with costs. 36. Orders accordingly. DATED, SIGNED AND DELIVERED THIS 16TH SEPTEMBER 2026. P a g e 10 | 11

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ELC CASE NO.614 OF 2013 ………………………… HON. C.K NZILI JUDGE In the presence of: 1. Mr. Miare for the 7 t h Interested Party 2. Mr.Kihara for the plaintiff 3. Ongiga for Mr.Murunga for the 1st and 6th Interested Party. 4. C/A: Julius. P a g e 10 | 11

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