[2022] KEELC 528 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT & LAND COURT AT THIKA

ELC NO. 182 OF 2019

WASHINGTON KIBATHA THUO……………………1ST PLAINTIFF

HENRY GATEI HUIHU……………………............….2ND PLAINTIFF

(suing as the legal representatives of the estate of CHARLES THUO KIBATHA, deceased)

VERSUS

DANIEL MUIRURI KIHARA ……………………1ST DEFENDANT

PETER NJUGUNA KIHARA……………….……2ND DEFENDANT

SAMUEL NDEGWA KIHARA……………….….3RD DEFENDANT

LUCY NYANDIRI KIHARA ……………..……..4TH DEFENDANT

(all suing as the legal representatives of the estate of FRANCIS KIHARA MUIRURI, deceased)

RULING

1. The 1st and 2nd Defendants raised a Notice of Preliminary Objection dated the 29/6/2021 on the grounds that;

a. the suit is resjudicata.

b. the suit is bad in law misconceived and discloses no cause of action against the Defendants, the legal representatives of the estate of FRANCIS KIHARA MUIRURI and is an abuse of the process of the Court

c. the suit be dismissed with costs.

2. The objection is expressed to be based on the grounds set out in the statement of defence and the witness statements of the 1st and 2nd Defendants on record.

3. It is their case that there was a previous case to wit; KIAMBU SRMCC NO 1312 of 1993 – Charles Thuo Kibatha Vs Francis Kihara Muiruri involving land parcel No 10874/58 (the suit land) which suit was dismissed on the 14/7/2015. That Kibatha never appealed the said dismissal at all till his demise on the 7/3/2008.

4. That an attempt by the 2nd Plaintiff to seek substitution of his late father, Charles Thuo Kibatha in the said suit vide an application brought in March 2019 was opposed by the Defendants forcing the said 2nd Plaintiff to withdraw the said application on the 17/7/2019. That thereafter the Plaintiffs filed this suit on the 13/12/2019 claiming the suit land without disclosing the existence of KIAMBU SRMCC No 1312 of 1993which involved their fathers and raised the same issues and litigating under the same title. In addition that the previous suit was determined by a competent Court and no appeal was preferred against its decision. They urged the Court to hold that the suit is resjudicata as litigation came to an end 14 years ago.

5. The preliminary objection is not opposed despite service of the same having been effected as supported by the affidavit of service filed on the 8/9/2021. The Court will look into the merits of the objection nonetheless.

6. The key issue for determination is whether the objection is merited.

7. For a preliminary objection to succeed the following tests ought to be satisfied: Firstly, it should raise a pure point of law; secondly, it is argued on the assumption that all the facts pleaded by the other side are correct; and finally, it cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. A valid preliminary objection should, if successful, dispose of the suit. See Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd [1969] EA 696

8. The legal provisions for res judicata are anchored in Section 7 of the Civil Procedure Act in the following terms;

“No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

Explanation. (1)—The expression “former suit” means a suit which has been decided before the suit in question whether or not it was instituted before it.

Explanation.(2)—For the purposes of this section, the competence of a Court shall be determined irrespective of any provision as to right of appeal from the decision of that Court.

Explanation. (3)—The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.

Explanation.(4)—Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

Explanation. (5)—Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused.

Explanation. (6)—Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.”

9. There are awash decisions of this Court’s determinations on this subject. The Black’s Law Dictionary 10th Edition defines “res judicata” as-

“(1) An issue that has been definitely settled by judicial decision…the three essentials are (1) an earlier decision on the issue,

(2) a final Judgment on the merits and

(3) the involvement of same parties, or parties in privity with the original parties…”

10. The case of the 1st and 2nd Defendants is that the suit is resjudicata on account of the previous suit between their fathers in KIAMBU SRMCC No 1312 of 1993. It is their view that the said suit was heard and determined by a competent Court.

11. By way of background the Plaintiffs have sued the Defendants for trespass. The Defendants have raised a defence of resjudicata on the grounds that the claim was a subject of a previous suit filed by the Plaintiffs father against their father in KIAMBU SRMCC No 1312 of 1993 which suit was dismissed 14/7/2015.

12. For the Court to examine the various facets of the principle of resjudicata, it must look at the facts or evidence placed before it to satisfy itself that ; The suit or issue was directly and subsequently in issue in the former suit; The former suit was between the same parties or parties under whom they or any of them claim; Those parties were litigating under the same title; The issue was heard and finally determined in the former suit; The Court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.

13. All the above points require evidence to be adduced by way of affidavit and can be argued in the normal manner. They do not qualify to be raised as Preliminary Points. One cannot raise a ground of res judicata by way of preliminary objection. The best way to raise a ground of res judicata is by way of notice of motion where pleadings are annexed to enable the Court to determine whether the current suit is indeed res judicata.

14. The second limb of the objection can also be raised by way of notice of motion.

15. In this regard I adopt the words of Sir Charles Newbold P. in Mukisa Biscuit case (Supra)which are applicable in the present circumstances-

“The first matter relates to the increasing practice of raising points which should be argued in the normal manner quite improperly by way of Preliminary Objection. 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 assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of Preliminary Objection does nothing but unnecessarily increase costs and, on occasion confuse the issues. This improper practice should stop”.

16. In the end the application is struck out with costs payable by the 1st and 2nd Defendants.

17. Orders accordingly.

DELIVERED, DATED AND SIGNED AT THIKA THIS 25TH DAY OF MARCH 2022 VIA MICROSOFT TEAMS PLATFORM.

J. G. KEMEI

JUDGE

Delivered online in the presence of;

Plaintiff 1 & 2 – Kimani holding brief for Charagu

Defendant 1, 2, 3 & 4 – Absent

Ms. Phyllis – Court Assistant