Boniface Musando Kasuku, Florida Musando & Patrick Maki Musando v Hussain Khaoya Wamalwa, The Hon. Attorney General & Kakamega County Land Registrar

a) The suit herein offends section 7 of the Civil Procedure Act and hence this court has no jurisdiction to determine the same. b) The suit herein offends the doctrine of sub judice hence this court has no jurisdiction to determine the same. 2. The Preliminary objection was disposed by way of written submissions. Parties filed written submissions, which the court has duly considered. Analysis and determination. 3. The court has carefully considered the preliminary objection herein as well as rival submissions filed. Two issues arise for the court’s determination, namely; a) Whether the preliminary objection filed herein is a proper preliminary objection; and b) Whether the preliminary objection herein is merited. 4. It is trite that a preliminary objection is a pure point of law which is raised on the pleadings on the basis that all the facts relied upon are not disputed. 2

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5. In the case of Mukisa Biscuits Manufacturing Ltd –vsWest End Distributors (1969) EA 696 the court described what constitutes a preliminary objection 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 a contract giving rise to the suit to refer the dispute to arbitration”. 6. In the same case Sir Charles Newbold, P. stated: “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. The 3 improper raising of

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preliminary objections does nothing but unnecessarily occasion, increase confuse the costs and on issue, and this improper practice should stop”. 7. Therefore, the issue herein is whether questions of sub judice and res judicata which are based on provisions of sections 6 and 7 of the Civil Procedure Act respectively, raise pure points of law which can be canvassed by way of a preliminary objection. A party raising a preliminary objection should raise it on the basis that it is predicated on agreed facts. They should not seek to present evidence to persuade the court on the objection raised. Any objection based on contested facts ought to be raised by way of an application supported by affidavit. 8. In the case of Kandara Residence Association & Another v Ananas Holdings Ltd & 4 Others; Director of Survey & 3 others (Interested Parties) [2020] e KLR, where the court cited with approval the reasoning in Henry Wanyama Khaemba v Standard Chartered Bank Ltd & Another [2014] e KLR, the court held as follows; 4

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“That restatement of the limited scope of a preliminary objection brings me to the point where I hold that the Preliminary objection by the 1st Defendant is not a true preliminary objection in the sense of the law. The issues of res judicata, duplicity of suits and suits having been spent will require probing of evidence as it is already evident from the submissions by the 1st Defendant. They are incapable of being handled as preliminary objections because of the limited preliminary scope of objections. the jurisdiction Courts of law on have always had a well-founded quarrel with parties who resort to raising preliminary objections improperly.” 9. In the instant case, while the defendants plead that this suit is both sub judice and res judicata, they did not mention within the preliminary objection, the previously filed and or determined suits which would render this suit sub judice or res judicata. Therefore, the preliminary objection is vague. 10. The doctrine of sub judice is provided for in section 6 of the Civil Procedure Act as follows; 5

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“No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.” 11. Therefore, to prove sub judice, the following elements must be demonstrated; a) That there is a pending suit or proceeding in a court with competent jurisdiction to grant the relief sought in the current suit. b)That the issue in the pending suit or proceeding is also directly and substantially in issue in the current suit; c) That the parties in the pending suit or proceeding are the same parties or are privies of parties in the current suit. 12. It is therefore clear that the elements of sub judice stated above cannot be proved through a preliminary objection. To prove sub judice, a defendant must provide 6

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pleadings in respect of a pending suit or proceeding showing that the suit or proceedings are between the same parties or their privies and raise the same issues in a competent court as a current suit. Hence, a party cannot properly raise sub judice through a preliminary objection. They ought to file a notice of motion supported by an affidavit attaching the pleadings in regard to the alleged pending suit. In the premises, I find and hold that the question of sub judice is not a pure point of law worth being raised through a preliminary objection. 13. The doctrine of res judicata is anchored in section 7 of the Civil Procedure Act which provides 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 finally decided by such court. Explanation. (1)—The expression “former suit” means a suit which has been decided before the suit in question whether or not it was instituted before it. 7

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Explanation.(2)—For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court. Explanation. (3)—The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation.(4)—Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation. (5)—Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused. Explanation. (6)—Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.” 14. Therefore, the doctrine of res judicata bars a court from trying a suit or an issue which was directly and substantially in issue between the same parties or their privies in a former suit, where a competent court has already determined such suit or issue on merit and with finality. 8

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15. For a defendant to prove res judicata, they must provide evidence that demonstrates that; (a) The issues, the parties, the subject matter and cause of action in the former suit are identical to those in the current suit. (b) There is a judgment or order in a former suit which is final. (c) The judgment or order in the former suit was on merit. (d) The judgment or order was rendered by a competent court with jurisdiction. 16. That being the case, the issue of res judicata rests on evidence of a merit determination of a former suit or issue between the same parties by a competent court. That question cannot therefore be determined through a preliminary objection as the same is not a pure point of law. 17. As the preliminary objection does not indicate the particulars of the already determined or pending cases, in respect of the pleas of sub judice and res judicata, besides having been predicated on contested facts, it is the finding of this court that the preliminary objection 9

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herein is both vague and not a proper or true preliminary objection. 18. In the premises, I find and hold that the preliminary objection dated 15th October 2025 is vague and not a proper preliminary objection, which I hereby strike out with costs to the plaintiff. 19. It is so ordered. DATED, SIGNED AND DELIVERED AT KAKAMEGA VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS SEPTEMBER, 2026 A. NYUKURI JUDGE In the presence of; Ms Masakhwe for the plaintiff Mr. Kong’ani for the defendants Court Assistant- Delphine 10 23RD DAY OF

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