[2024] KEELC 14051 (KLR)

Shah v County Government of Trans Nzoia & another (Environment & Land Case 11 of 2019) [2024] KEELC 14051 (KLR) (11 December 2024) (Ruling)

Neutral citation: [2024] KEELC 14051 (KLR)

Republic of Kenya

In the Environment and Land Court at Kitale

Environment & Land Case 11 of 2019

FO Nyagaka, J

December 11, 2024

Between

Avir Kant Shah

Plaintiff

and

The County Government of Trans Nzoia

1st Defendant

Eric Wafula

2nd Defendant

Ruling

1. The 1st Defendant filed an application dated 08/10/2024 against the Plaintiffs. He brought it under Order 2 Rule 15 and Order 51 of the Civil Procedure Rules. He sought a prayer that the Honourable Court be pleased to issue an order striking out the plaintiff’s Plaint dated 06/02/2019. It also sought for costs of the application.

2. It contained five (5) grounds, one of which was that the suit did not disclose any cause of action against the 1st Defendant and an abuse of the process of the court. The other was the suit concerning Land Reference No. 6624, which was originally No. 1792/4, which the Plaintiff without due process of court caused to be registered as Kitale Municipality Block 32/2. Sometime on 12/12/2021, the 2nd Plaintiff who was struck out from the proceedings applied to be enjoined as the 2nd Defendant, Vipul Ratilal Dohia who was struck out of the proceedings applied through a Chamber Summons to be enjoined as the 2nd Plaintiff for reason of being the current owner of the land, having purchased it from the Plaintiff herein and then subdivided the plot into several other parcels.

3. A further ground was that upon filing the Amended Plaint dated 09/11/2022 that suit metamorphosed into something different than the suit originally filed by the Plaintiff. The 2nd Defendant made an application dated 12/07/2023, and supported by the 1st Defendant, seeking to strike out the Amended Plaint dated 09/11/2022 and filed on 10/11/2022. By a ruling delivered on 19/02/2024 the Amended Plaint was struck out and the 2nd Plaintiff’s name removed.

4. The instant application was supported by an affidavit sworn by one Truphosa Amere, the Secretary of the 1st Defendant, on 08/09/2024. It repeated the contents of the grounds, besides giving additional facts in the form of annexures that ran to three.

5. Upon service of the application, the Plaintiff raised a preliminary objection to the application. It was dated 28/10/2024. It was founded on two grounds. The first one was that the application was incompetent and ought to be struck out as it offended the mandatory provisions of Section 7 of the Civil Procedure Act as it was res judicata. The second ground was that the application was fatally defective in substance, law and fact and ought to be dismissed with costs.

6. The preliminary objection was disposed of by way of written submissions. The plaintiffs’ submissions were dated 25/11/2024 while the Defendants’ submissions were dated 02/12/2024.

7. The Defendant, after giving a summary of the application, set forth issues for analysis and determination. He started his submissions by arguing that Section 55 of the Advocates Act mandated every person entitled to act through an advocate to do so and that the Advocate being an officer of the court should assist it to arrive at a just determination of the issue before it. He stated that the Preliminary Objection did not raise any points of law. He relied on the case of Mukisa Biscuits Manufacturing Company Limited versus Western Distributors Limited [1969] EA, 696 and the case of Margaret Njeri Gitau versus Julius Mburu Gitau and 2 others [2022] eKLR. In the latter decision the court stated that for it to ascertain whether a matter was res judicata it would have to delve into the bundle of documents filed by the parties in which case it would be going to the facts of the case. He also relied on the case of Henry Wanyama Khaemba versus Standard Chartered Bank Limited [2014] eKLR where the court opined that the issue of res judicata, duplicity, and a suit having been spent would require probing the evidence to arrive at a finding. Further, he relied on the case of George Kamau Kimani and four others versus the County Government of Trans Nzoia [2014[ eKLR in which the Court also held that the issue of res judicata cannot be successfully raised as a preliminary objection as a point of law, but rather through an application.

8. He's summed it that the preliminary objection be dismissed with costs.

9. On their part, the 1st and 2nd Respondents summarized the application. They argued that Section 7 of the Civil Procedure Act, which they quoted verbatim, required that after a matter had been handled by a court and determined as between similar facts, same parties, same cause of action and under the same title it should not be tried again. They stated that the matter herein had been decided in that manner and therefore the application was res judicata. They moved the court to strike out the application on that account because it was a waste of precious judicial time. They relied on the case of Njue Ngai vs. Ephantus Njiru Ngai and another 2016 EKLR Nyeri Civil Appeal No. 29 of 2015 (sic) which discussed the same issue, of res judicata, and upon an appeal being preferred therefrom, the Court of Appeal found the appeal without merit and dismissed it with costs.

Analysis And Discussion And Determination 10. This court has considered the preliminary objection, the rival submissions by both counsel, and the law. The only issue for determination before it is whether the preliminary objection is merited, and who to bear its costs.

11. Whereas the Plaintiffs may have an arguable point about res judicata, the preliminary objection herein raises a point but which this Court still struggles to understand how it is a pure point of law. It should not be lost to the parties that a preliminary objection must always grounded solely on points of law raised by either a Defendant or Respondent on the one hand or Plaintiff, Claimant or Petitioner on the other. It arises by necessary implication from pleadings only. It does not touch on any facts at all, otherwise it would require that the Court considers the merits of a dispute through facts, which would call for adduction of evidence, a clarification of the same by way of testimony in chief or deposition testing its veracity, weight or proof by way of cross-examination. Thus, where a party purports to raise a point needing clarification by way of evidence or a rebuttal by way of evidence it is not a preliminary objection. While it can succeed in some other way, such a ‘preliminary objection’ will not be successful on that account.

12. This was the holding in the case of Mukhisa Biscuit Manufacturing Co. Ltd -vs- West End Distributors Ltd (1969) EA 696, where Sir Charles Newbold defined a Preliminary objection as follows:-“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. Examples are an objection to the jurisdiction of the Court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration… 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 facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion.”

13. Also, in Bashir Haji Abdullahi v Adan Mohammed Noor & 3 others [2004] e KLR, the same Court (of Appeal) held that:“We are of the considered view that if a party wishes to raise a Preliminary Objection and files in Court a Notice to that effect and is subsequently served on other parties to the suit, the Preliminary points should be sufficiently particularized and detailed to enable the other side and indeed the court to know exactly the nature of the preliminary points of law to be raised. To state that “the application is bad in law” without saying more does not assist the other parties to neither the suit nor the Court to sufficiently prepare to meet the challenge. If it is only at the hearing that the Preliminary Objection is amplified and elaborated, it gets the other side unprepared and is reminiscent of trial by ambush.”

14. Additionally, in Susan Wairimu Ndiangui V Pauline W. Thuo & Another [2005] eKLR, Musinga J. as he then was held as follows:-“a preliminary objection should not be drawn in a manner that is vague and non-disclosing of the point of law or issue that is intended to be raised. It should clearly inform both the court and the other party or parties in sufficient details what to expect.”

15. A careful interpretation of the law regarding preliminary objections renders the view that this Court ought not and shall not delve into facts to determine the point herein. This Court can only analyze the Application, which is the pleading before it for consideration on the point raised. In so doing, it finds nowhere the parties have indicated by the pleading that the application was fully determined as between the parties. If the Court were to determine meritoriously the issues raised in the objection herein as they are, it will need to call for other evidence of determination such as the previous application, the response thereto and the ruling that was rendered as the Court settled it. It thus is not a pure point of law. The Plaintiffs, if they needed to persuade the Court that the matter was res judicata, should have moved it by way of an application, attaching the evidence of the similarities of the issues therein and in the instant application so that the Court would appreciate them and make a finding. They did not. Thus, the preliminary objection is not merited. It is dismissed with costs to the Defendant/ Applicant.

16. The Application dated 08/10/2024 shall thus be heard on 18/12/2024.

17. Orders accordingly.

RULING DATED, SIGNED AND DELIVERED AT KITALE VIA THE TEAMS PLATFORM THIS 11TH DECEMBER, 2024. HON. DR. IUR F. NYAGAKAJUDGE. ELC KITALE.In the presence of:Mr. Songole Advocate for the PlaintiffsMr. Obuli Advocate for the Defendant