[2016] KEELC 1125 (KLR)
The court held that the issue of res judicata could not be determined at the preliminary objection stage because it required the production and examination of evidence, specifically the proceedings and decision of the Tribunal. Since a preliminary objection must be based solely on points of law and not on disputed...
Source-derived case information.
- Citation
- [2016] KEELC 1125 (KLR)
- Parties
- Plaintiff: Fares Jilo Dhadho; Defendant: Amon Petero Buya; Plaintiff: Elija Barisa Galido
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1 of 2014
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- OA Angote
- Legal Topics
- Res Judicata, Preliminary Objection, Land Disputes, Consolidation of Suits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fares Jilo Dhadho
Plaintiff
Amon Petero Buya
Defendant
Elija Barisa Galido
Plaintiff
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit is res judicata by virtue of a previous decision by the Galole Land Disputes Tribunal and its adoption by the Magistrate's Court.
- 2 Whether the issue of res judicata can be determined as a preliminary objection without production of evidence.
- 3 Whether consolidation of suits affects the applicability of res judicata.
Ratio Decidendi
The court held that the issue of res judicata could not be determined at the preliminary objection stage because it required the production and examination of evidence, specifically the proceedings and decision of the Tribunal. Since a preliminary objection must be based solely on points of law and not on disputed facts or evidence, the objection was premature. Furthermore, the consolidation of suits, where not all parties were before the Tribunal, further complicated the res judicata argument. The court concluded that the issue should be raised as a defence at trial, not as a preliminary objection.
Court Disposition
preliminary objection dismissed
Orders
- The Notice of Preliminary Objection dated 18th May, 2015 is dismissed with costs.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC CIVIL CASE NO.1 OF 2014
(Consolidated with ELC No. 26 of 2014)
FARES JILO DHADHO............................................................................PLAINTIFF
=VERSUS=
AMON PETERO BUYA.........................................................................DEFENDANT
IN ELC NO. 26 OF 2014
ELIJA BARISA GALIDO..........................................................................PLAINTIFF
=VERSUS=
AMON PETERO BUYA.........................................................................DEFENDANT
R U L I N G
1. What is before me is the Notice of Preliminary Objection filed by the Defendant dated 18th May 2015.
2. The Defendant has averred in the Preliminary Objection that ELC Civil Case No. 1 of 2014 is res judicataGalole Land Disputes Tribunal Case No. LND, 17C/VOL VI/15 of 5/7/2011 because the issues of fact and law between the parties herein were substantially the same issues before the Tribunal; that those issues were substantially heard and determined by the Tribunal and that a decision was rendered on 18th October 2011 and adopted by the Magistrate's Court in Hola on 5th February, 2014.
3. Although the parties were required to file submissions, the Plaintiff's advocate did not file submissions.
4. The Defendant's/Applicant's advocate filed submission in which he reiterated the averments in the Notice of Preliminary Objection.
5. I have considered the Preliminary Objection and I am of the view that the issues raised by the Applicant should be raised at trial.
6. I say so because the proceedings of the Tribunal can only be conclusively considered once the same have been produced in evidence.
7. Considering that a Preliminary Objection is supposed to be an objection purely on a point of law, and in view of the fact that this court is supposed to consider if the proceedings in the Tribunal are res judicata this suit after receiving evidence, I shall not condemn the Plaintiff herein before hearing him.
8. The issue of whether the matter is res judicata or not is further compounded by the fact that this matter was consolidated with ELC Civil Suit No. 2 of 2014 in which the Plaintiff was not a party therein to the proceedings before the Tribunal.
9. The question of this suit being res judicata should therefore be raised as a Defence in the two suits and not as a Preliminary Objection.
10. In the circumstances, I dismiss the Notice of Preliminary Objection dated 18th May, 2015 with costs.
Dated and delivered in Malindi this26th day of February, 2016.
O. A. Angote
Judge