[2007] KEHC 3614 (KLR)
The court found that the preliminary objection raised by the defendants was not properly before the court as it was based on matters of fact rather than pure points of law. The issue of substitution of the deceased 1st defendant had been overtaken by events since the plaintiffs had already withdrawn the suit against...
Source-derived case information.
- Citation
- [2007] KEHC 3614 (KLR)
- Parties
- Plaintiff: Andrew Munyinyi; Plaintiff: Edward Njenga; Plaintiff: Allan Mbugua; Defendant: Kinuthia Munyinyi Igogo; Defendant: Kiberi Munyinyi Igogo
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 108 of 2004
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Legal Topics
- Adverse Possession, Res Judicata, Substitution of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Andrew Munyinyi
Plaintiff
Edward Njenga
Plaintiff
Allan Mbugua
Plaintiff
Kinuthia Munyinyi Igogo
Defendant
Kiberi Munyinyi Igogo
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit is res judicata and should be dismissed on that ground.
- 2 Whether the suit against the 1st defendant should proceed given the 1st defendant is deceased and no legal representative has been substituted.
Ratio Decidendi
The court found that the preliminary objection raised by the defendants was not properly before the court as it was based on matters of fact rather than pure points of law. The issue of substitution of the deceased 1st defendant had been overtaken by events since the plaintiffs had already withdrawn the suit against the 1st defendant. The objection on res judicata was not properly raised by way of a formal application supported by affidavit evidence, and therefore could not be determined at this stage. Consequently, the preliminary objection was dismissed with costs to the plaintiffs, and the parties were directed to proceed to the main suit.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection dated 28 October 2004 is dismissed with costs to the plaintiffs.
- Parties to proceed to the main suit.
Full Case Text
Judgment text and source record
40 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 108 of 2004
1. Land and Environmental Law Division
2. Civil Practice & Procedure
3. Main suit – adverse possession
4. Preliminary Objection – Suit Res Judicata
No legal representative substituted for the 1st Defendant
5. In reply – matters raised are of facts.
6. Held
i) Preliminary Objection dismissed.
The Preliminary Objection of 28. 10. 2004 on Respondent Judicator ought to have been brought by way of an application.
ii) The issue of 1st defendant being deceased no longer exists as suit against 1st defendant has been withdrawn..
7. Case Law - Nil
8. Advocates
C. Goi instructed by Gichuki Kingara & Co. Advocates for the plaintiff
P. Nganga instructed Kamau Kuria & Co. Advocates for the defendant
ANDREW MUNYINYI ………....………………....………..1ST PLAINTIFF
EDWARD NJENGA……………………………………….2ND PLAINTIFF
ALLAN MBUGUA………………………….…….….……..3RD PLAINTIFF
VERSUS
KINUTHIA MUNYINYI IGOGO…………....…..….……..1ST DEFENDANT
KIBERI MUNYINYI IGOGO………………...…..…....…2ND DEFENDANT
RULING
On Preliminary Objection
I. Background of Preliminary Objection.
1. On 9 February 2004 the three plaintiffs filed suit for adverse possession for land parcel Kiambaa Ruaka/221 originally registered in the name of Munyinyi Igogo in the alternative, this titles be held in their favour are so held in the amount of 2 acres only.
2. On being served the advocate for the defendant entered appearance on 17 June 2004. A preliminary objection notice was filed on 4 November 2004. The main objection being that the 1st defendant herein is deceased. No legal representative has since been substituted to come on the file.
3. The Plaintiff/applicant at once filed a notice of withdrawal of suit against the 1st defendant (who is now deceased).
4. The defendant filed a chamber summons that was struck out by this court. This application having been filed on direction by Ransley J. (6 April 2005) were taken that the matter proceeds to trial parties appeared to have taken dates four times but did not proceed to hearing.
5. On the day the matter was fixed for hearing; the advocate for the defendant raised preliminary objection based on the same objection that the 1st defendant was in fact now deceased. The limb of res judicator was thus taken up and prayed the main suit be dismissed.
II. Findings
6. The respondent/plaintiff objected to the application on grounds that issue of facts had been raised and not of law. I nonetheless note that the defendant has not field an affidavit in reply to the Originating summons. If one has been filed it is not on the courts record and it is therefore difficult to know whether these are the same claim raised in the replying affidavit.
7. I hereby rule that the issue before me as per the preliminary notice of objection of 28 October 2004 was on two issues – Res judicata and substitution of deceased person. The latter has been overtaken by the event the former ought to have been specified in an application and detailed facts deponed therein. Any proposed application has since been withdrawn and or struck out by the court. The preliminary objection 28 October 2004 is hereby overruled with costs to the Plaintiff parties to proceed to the main suit.
Dated this 22nd day of May, 2007 at Nairobi.
M.A. Ang’awa
JUDGE
C. Goi for Gichuki Kingara & Co. Advocates for the plaintiff
R. Nganga for Kamau Kuria & Co. Advocates for the defendant