[2017] KEHC 4767 (KLR)
The court found that the Defendant failed to provide evidence that the matters in issue in the present suit were directly and substantially in issue in Nairobi HCCC No. 78 of 1999 between the same parties and that those issues were heard and finally decided by a competent court. In the absence of a complete record...
Source-derived case information.
- Citation
- [2017] KEHC 4767 (KLR)
- Parties
- Plaintiff: Damaris Wayua Musee alias Damaris Musee Kimanthi; Defendant: Kenya Industrial Estates
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 167 of 2016
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection struck out
- Judges
- OA Angote
- Legal Topics
- Res Judicata, Preliminary Objection, Striking Out, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Damaris Wayua Musee alias Damaris Musee Kimanthi
Plaintiff
Kenya Industrial Estates
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit is res judicata due to a previous suit involving the same parties and subject matter.
- 2 Whether the Defendant has discharged the burden of proving that the matter was directly and substantially in issue in the previous suit.
Ratio Decidendi
The court found that the Defendant failed to provide evidence that the matters in issue in the present suit were directly and substantially in issue in Nairobi HCCC No. 78 of 1999 between the same parties and that those issues were heard and finally decided by a competent court. In the absence of a complete record from the previous suit, the court could not uphold the preliminary objection on the ground of res judicata. Consequently, the Notice of Preliminary Objection was struck out with costs to the Plaintiff.
Court Disposition
preliminary objection struck out
Orders
- The Notice of Preliminary Objection dated 23rd February, 2017 is struck out with costs.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MACHAKOS
ELC. CASE NO. 167 OF 2016
DAMARIS WAYUA MUSEEalias
DAMARIS MUSEE KIMANTHI..........................................PLAINTIFF
VERSUS
KENYA INDUSTRIAL ESTATES...................................DEFENDANT
RULING
1. What is before me is the Notice of Preliminary Objection dated 23rd February, 2017 and filed by the Defendant.
2. In the said Notice of Preliminary Objection, the Defendant has averred that this suit is res judicatabecause there was a similar suit, involving the same parties and acting in the same capacity in “Civil Case No. 78 of 1999 Sparkle Foods Products Limited and Wayua Musee Kimanthi vs Kenya Industrial Estates Limited”.
3. Although the court granted to the Plaintiff leave to file an Affidavit in response to the said Notice of Preliminary Objection, she did not do so.
4. In the same breath, the Defendant did not exhibit evidence to show that the matters in issue in this suit have been directly and substantially been in issue in HCCC No. 78 of 1999 between the same parties in a competent court and that the issues were heard and finally decided.
5. In the absence of a complete record in Nairobi HCCC No. 78 of 1999, I strike out the Notice of Preliminary Objection dated 23rd February, 2017 with costs.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 30TH DAY OF JUNE, 2017.
O.A. ANGOTE
JUDGE