[2025] KEELC 85 (KLR)

Oreo v Sakaja (Sued as the Legal Representative of the Estate of Raphael Sakaja (Deceased)) (Enviromental and Land Originating Summons E011 of 2024) [2025] KEELC 85 (KLR) (16 January 2025) (Ruling)

Neutral citation: [2025] KEELC 85 (KLR)

Republic of Kenya

In the Environment and Land Court at Kilgoris

Enviromental and Land Originating Summons E011 of 2024

MN Mwanyale, J

January 16, 2025

Between

Nankiti Ene Oreo

Applicant

and

Francis Lerionka Sakaja

Respondent

Sued as the Legal Representative of the Estate of Raphael Sakaja (Deceased)

Ruling

1. This Ruling relates to the Notice of Preliminary Objections dated 09/10/2024 filed by the Respondents in respect of this suit. The P/O is premises on grounds interalia;I)that the suit is resjudicata and/or similar to Kilgoris CMCC ELC No. e041 of 2024 between Nainkiti Ene Oreo versus Francis Lerionka Sakaja in which a ruling stricking out the suit was delivered on 29/08/2024 and the pleadings herein are similar word for word with the matter that was before the Chief Magistrates court.ii)that this court lacks pecuniary jurisdiction to hear and determine this matter

2. The hearing of the P/O was directed to be by way of written submissions, the Respondent Submits that the suit is resjudicata since this court delivered a judgment in a matter filed by Kemei O. Kisorog and which judgment is subject of an Appeal before the Court of Appeal at Kisumu. once Mr. Kisorog lost that matter, this suit was filed initially before the Chief Magistrates court where it was struck out and thereafter filed before this court. In support of his submissions the Defendant places reliance in the High Court decision in Omart/aSabrin Shop vs High Commodities Limited Civil Appeal E291 of 2023.

3. In his submissions the Plaintiff has framed and submitted on two issues t to wit,i)Whether the preliminary objections is merited andii)whether the matter is resjudicata.

4. On issue 1 the plaintiff submits that the matter is not Res judicata and that Resjudicata although a legal issue requires factual examination and that the same removes it from being a pure matter of law. In this regard the plaintiff placed reliance on the case of Mukhisa Biscuits versus West End Distributors, Pan African Builders and Contrcators vs Amor Jogolish Singh and Avtar Singh Bhamra vs oriental Commercial Bank.

5. On issue number 2 as to whether the suit is Resjudicata the plaintiff submits that in view of the fact that the suit before the Chief Magistrate was struct out there is no former judgement and that the same is thus not Resjudicata. The plaintiff thus urged the court to allow the matter to proceed and not to be struck out as the preliminary objection lacks merit.

Issues for Determination 6. Having analyzed the Notice of preliminary objection as well as the rival submissions by the parties, the court frames the sole issue for determination as follows,i)Whether the Preliminary objection before court meets the threshold of a preliminary objection capable of determining the suit in limine

Analysis and Determination 7. The plea of Res-judicata is undoubtedly a point of law as it is based on section 7 of the Civil Procedure Act and it has the potential of determining a matter summarily.

8. The Court shall now consider whether the Preliminary objection as filed in this Matter meets the threshold of Preliminary Objections as was observed in the decision in the case of In Mukisa Biscuit Manufacturer Limited vs Westend Distributors Limited; the Court held in respect of a preliminary objection, that “so far as I am aware, a preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implications out of pleadings, and which if argued as a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the acts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or what is sought is the exercise of judicial discretion….”

9. Similarly in the decision in the case of Omondi vs National Bank of Kenya Limited and 2 others; as quoted in the decision ofJ. N. and 5 others vs Board of Management St. G. School Nairobi and Another where it was held that; “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………..where a Court needs to investigate facts, a matter cannot be raised as a preliminary point. Anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence.”

10. The above excerpts from the above cited decision shall guide this Court on whether the objection meets the criteria preliminary objections. From the above excerpts a preliminary objection must no deal with issues of ascertainment of the facts and evidence. The issue of the existence of the previous suit determined by this court and subject of an appeal before the Court of Appeal as well as the issue of the previous suit determined at the Chief Magistrates court Kilgoris are factual issues which both require examination of facts to be availed before court through the ordinary course of evidence by way of either viva voce evidence or affidavit evidence. It follows therefrom as drawn the preliminary objection fails to meet the threshold of a preliminary objection as the same involves ascertainment of facts through the rules of evidence and the same must fail, as it hereby does, and the court shall not dwell on its merits or otherwise.

11. The court shall consider the issue of Res-judicata together with the pending application as affidavits have been filed in respect of that application, that way it shall be possible to ascertain the facts and evidence lending credence to the claim of Res-judicata as pleaded.

12. The upshot is that the preliminary objection dated 9. 10. 2024 is hereby dismissed with costs in the cause.

DATED AND DELIVERED AT KILGORIS THIS 16TH DAY OF JANUARY, 2025. HON. M.N. MWANYALEJUDGEIn the presence ofMr. Koome for the ApplicantN/A for the RespondentC/A Emmanuel.