Johnson Matiti Kithendu & 1 other v Housing Finance Company Limited

4. The parameters of consideration of a Preliminary Objection are now well settled. A Preliminary Objection must only raise issues of law. The principles that the Court is enjoined to apply in determining the merits or otherwise of the Preliminary Objection were set out by the Court of Appeal in the case of Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd [1969] EA 696. At page 700, Law, JA stated: “ 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.” At page 701, Sir Charles Newbold, P added: “ A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is usually 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. For a Preliminary Objection to succeed the following tests ought to be satisfied; Firstly, it should raise a pure point of law; secondly, it is argued on the assumption that all the facts pleaded by the other side are correct; and finally, it cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. A valid Preliminary Objection should, if successful, dispose of the suit or application. 6. The Respondent submitted that the application in issue is res judicata. Section 7 of the Civil Procedure Act on res judicata, reads 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.” 7. The rationale of the doctrine of res judicata is to ensure that every litigation must come to an end. In the case of The Independent Electoral and Boundaries Commission v Maina Kiai & 5 others, [2017] eKLR, the Court of Appeal enunciated the elements to be satisfied in proving a matter to be res judicata as follows; For the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must be satisfied, as they are rendered not in disjunctive but conjunctive terms; a) The suit or issue was directly and substantially in issue in the former suit. b) That former suit was between the same parties or parties under whom they or any of them claim. c) Those parties were litigating under the same title. d) The issue was heard and finally determined in the former suit. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12100/eng@2025-04-03 2

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e) 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. 8. The Defendant submits that the Plaintiffs in this case filed a similar suit in Mombasa HCCC No. 75 of 2019. The matter was heard and judgment delivered on 21/12/2023. The Plaintiffs being aggrieved by the said judgment filed an application to review the said judgment where the ruling was delivered on 0/04/2024. 9. In the Court of Appeal, the Plaintiffs filed the applications no. E005/2024/ E006/ 2024 where both applications were withdrawn, and E007/2024 which was dismissed on 21/06/2024. The suit had similar facts and circumstances as in this suit subject to the Preliminary Objection, thus making it Res judicata. 10. On the other hand, the Plaintiffs submitted that the previous suit was in respect to statutory notices issued by the Defendant that were held to be invalid, while this suit was in respect to fresh statutory notice dated 03/06/2024, hence the suit is not Res judicata. 11. I have perused through the reliefs sought by the Plaintiff in both suits. The main issue in both suits was that the Defendant was exercising the statutory power of sale in respect to Title No. Kwale/ Diani Beach Block/ 1164 where the Plaintiff challenged the said sale and further seeking to prohibit the Defendant by way of permanent injunction from dealing whatsoever with the said property. 12. In HCCC No. 75 of 2019, Hon. Justice Magare directed that the 1st Defendant (the Defendant in this suit) do issue fresh statutory notice and a fresh valuation of the property be done before embarking on a fresh sale. The defendant pursuant to the court orders, issued fresh statutory notice dated 03/06/2024. The Plaintiffs now seeks to have the said notice and the proposed valuation of the property be declared null and void. 13. The Plaintiffs ought to have made their prayers in the concluded suit instead of filing a fresh suit as the court still has jurisdiction to deal with the matter. Under the circumstances, I find that this suit is res judicata as it has met the elements as stated in the I.E.B.C case (supra). 14. Following the foregone discourse, the upshot is that the following orders do hereby issue: a. The Preliminary Objection dated 30/10/2024 has merits and is hereby upheld. b. That this suit is found to be Res judicata and is hereby struck out. c. Each party to bear its own costs. Orders accordingly. DATED, SIGNED AND DELIVERED AT MOMBASA THIS 3RD DAY OF APRIL, 2025. ............................ F. WANGARI JUDGE In the presence of; M/S Kibii Advocate h/b for Munyinthia Advocate for the Plaintiff. Mr. Randiek Advocate for the Defendant M/S Salwa, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12100/eng@2025-04-03 3

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