[2023] KEELC 21756 (KLR)

[2023] KEELC 21756 (KLR)

The court held that the trial court erred in upholding the preliminary objection on res judicata because the plea required delving into contested facts and evidence, which is not permissible for a preliminary objection. The issues of trespass and malicious damage to property on specific dates and parcels of land had not been previously litigated, and the appellant was not a party to the former suit. The trial court should have considered the preliminary objection alongside the merits of the case or directed the respondent to file a formal application. Regarding written submissions, the court found that the appellant was not condemned unheard, as there was no evidence of timely filing and...

Citation
[2023] KEELC 21756 (KLR)
Parties
Appellant: Jamlick Mutugi Mate; Respondent: Peter Gitonga
Court
Environment and Land Court
Court Station
Environment and Land Court at Meru
Jurisdiction
Kenya
Judgment Date
22 November 2023
Case Number
Environment and Land Appeal 1 of 2023
Procedural Posture
Environment and Land Appeal / First Appellate Judgment
Outcome
Appeal allowed with costs.
Judges
CK Nzili
Legal Topics
Res Judicata, Preliminary Objection, Trespass to Land, Boundary Disputes, Mesne Profits, Written Submissions
Source Language
English
Civil Procedure Land and Property Res Judicata Preliminary Objection Trespass to Land Boundary Disputes Mesne Profits Written Submissions

Case Brief

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Parties

Jamlick Mutugi Mate

Appellant

Peter Gitonga

Respondent

Procedural Posture

Environment and Land Appeal / First Appellate Judgment

Legal Issues

  1. 1 Whether the trial court erred in finding the suit res judicata.
  2. 2 Whether the trial court erred in holding that there were no written submissions by the appellant.
  3. 3 Whether the trial court failed to consider the appellant's written submissions.

Ratio Decidendi

The court held that the trial court erred in upholding the preliminary objection on res judicata because the plea required delving into contested facts and evidence, which is not permissible for a preliminary objection. The issues of trespass and malicious damage to property on specific dates and parcels of land had not been previously litigated, and the appellant was not a party to the former suit. The trial court should have considered the preliminary objection alongside the merits of the case or directed the respondent to file a formal application. Regarding written submissions, the court found that the appellant was not condemned unheard, as there was no evidence of timely filing and...

Court Disposition

Appeal allowed with costs.

Orders

  • The appeal is allowed.
  • The ruling and order of the lower court are set aside.