[2013] KEHC 5819 (KLR)
The court held that the issues raised by the 1st defendant—res judicata, limitation, misjoinder, and first registration—are not pure points of law but require evidence to be established. The court emphasized that a preliminary objection must be based on clear, undisputed facts and not on matters that require...
Source-derived case information.
- Citation
- [2013] KEHC 5819 (KLR)
- Parties
- Plaintiff: Pola Mwamanga Matsaki; Defendant: Nzaro Mutsongomatsaki; Defendant: The Hon. Attorney General
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 269 of 2004
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Legal Topics
- Preliminary Objection, Res Judicata, Limitation of Actions, Misjoinder of Parties, First Registration, Government Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pola Mwamanga Matsaki
Plaintiff
Nzaro Mutsongomatsaki
Defendant
The Hon. Attorney General
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit is res judicata by virtue of Kaloleni Civil Case No. 28 of 1972.
- 2 Whether the suit is statute barred under the Limitation of Actions Act, Cap. 22.
- 3 Whether there is a misjoinder of the first defendant.
Ratio Decidendi
The court held that the issues raised by the 1st defendant—res judicata, limitation, misjoinder, and first registration—are not pure points of law but require evidence to be established. The court emphasized that a preliminary objection must be based on clear, undisputed facts and not on matters that require examination of evidence or facts in dispute. The court found that the previous suit cited as res judicata was not attached or substantiated, and the issues of limitation and first registration similarly required evidentiary analysis. The court also noted that misjoinder does not defeat a suit under Order 1 rule 9 of the Civil Procedure Act, and the requirement for notice under Section...
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed as misconceived.
- Costs awarded to the plaintiff.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
INTHE HIGH COURT OF KENYA
AT MOMBASA
CIVIL CASE NO. 269 OF 2004
POLA MWAMANGA MATSAKI ........................................................PLAINTIFF
- VERSUS -
1. NZARO MUTSONGO MATSAKI
2. THE HON. ATTORNEY GENERAL .......................................DEFENDANTS
RULING
The 1st defendant has raised a Preliminary Objection in this case in which he seeks to have the plaint struck out on the following points.
(a) That in para 7 of his defence he has argued that this case is resjudicatia by virtue of Kaloleni Civil Case No. 28 of 1972. A suit he claims was dismissed.
(b) That para 11 of the defendants statement of defence raises the issue that this suit is statute barred by dint of the provisions of the Limitation Act Cap. 22.
(c) That there is a misjoinder of the first defendant since the 1st defendant had not registered any interest on the suit land and that he had no authority or capacity to represent and or act for and on behalf of one Mtsonga Matsaki Mwmanga.
(d) That the suit is a first registration. That under Sec. 143 of the repealed act, their rights have been reserved, safeguarded, protected retained and continued under Sec. 104 (2) and 107 (1) of the Land Registration Act No. 3 of 2012.
The plaintiff has stated in his submissions that para 5 of the plaint raised triable issues.He states that the plaint is capable of being amended.On limitation the plaintiff argues that he is challenging an error on record.That the error can be corrected at any time.He argues that, whether this is a first registration or whether the suit is resjudicatia is a matter of evidence.
What can be raised in Court as a Preliminary point is now well settled. Unless the matter is plain and obvious, a party to a civil litigation is not to be deprived of his right to have case tried by a proper trial where if necessary there has been discovery oral evidence subject to cross-examination.
The applicant argues that this suit is resjudicatia because of Kaloleni Civil Case No. 28 of 1997. Such case was not attached to the submissions at all. I am therefore in the dark as to what it was at all about. In any case such an issue will be a matter of evidence. The issue of the case being statute barred under Limitations of Actions Act, Whether this is a first registration under the retained sections of the repealed Cap. 300 is also a matter of evidence.
Order 1 rule 9 of the Civil Procedure Act is clear that the suit shall not be defeated by reason of the misjoinder or nonjoinder of parties.
As for the 2nd defendants issue of notice under Section 13A of the Government Proceedings Act Cap. 40, the High Court has found that this Section is unconstitutional.
The issues raised herein are not within the purview of a Preliminary Objection.These are issues that should be canvassed in the suit itself.
The Preliminary Objection is dismissed as being misconceived with costs to the plaintiffs.
Dated and delivered in open court at Mombasa this 27th day of June, 2013.
S.N.MUKUNYA
JUDGE
In the presence of:
Mr.Onyango Advocate for 1st defendant
Mrs.Umala Advocate for Mr. Magolo Advocate for plaintiff
State Counsel - present
1. Wenlock v maloney and another [1965] 1 WLR quoted in ICDC vs Daber Enterprises Ltd.
Mukisa Bisquit Co. v Westend Distributors Ltd [1969] EA 696 Page 700
2. See Nai. HCC.504 of 2008 Kenya Bus Service & ano. v Minister of Transport & 2 others.