RULING
INTRODUCTION
1. The Petitioners (3rd, 4th and 5th Respondents) herein filed a notice of preliminary objection on a point of law dated 26th July 2022 in response to the Applicants Application dated 12th May 2022 on the following grounds:
a. THAT the Applicant’s application dated 12th day of May 2022 does not comply with the provisions of the Civil Procedure Rules, 2010
b. that the whole of the Application is fatally defective, incompetent and bad in law
c. THAT the Applicant’s application dated 12th May 2022 offends the provisions of Section 7 of the Civil Procedure Act Cap 21 of the Laws of Kenya.
2. The matter proceeded by way of oral submissions before Court.
PETITIONER’S SUBMISSIONS
3. The substratum of the Preliminary objection is that the Application dated 12th May 2022 is Res Judicata as the matter of paternity of the 1st and 2nd Applicants was determined conclusively in the Court at Eldama Ravine in E058 of 2021, as the DNA results showed they were not the biological children of the deceased.
4. THAT the Court in Eldama Ravine dismissed the Application lodged by the 1st and 2nd Applicants.
5. The Petitioners relied on the decisions in Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Civil Appeal no. 4 of 2001 and George W M Omondi and Anor Vs National Bank of Kenya Ltd & 2 Others [2001] eKLR on the principle of res Judicata.
6. He asserted that the 4 principles are as Siamese twins and that the principle is premised on the public policy demand that litigation must come to an end. He contended that although the parties differ the issues are substantially identical. He also argued that the matter does not fall within the exceptions to the Res Judicata rule.
APPLICANTS' SUBMISSIONS
7. The Applicants opposed the Preliminary Objection and relied on the case of Mukhisa Biscuit Manufacturing Co. Ltd vs Westend Distributors Ltd 1969 EA 696
8. The Applicants contend that contrary to the principle laid out in the Mukhisa case the Petitioners have proceeded to adduce evidence. In any event it is argued that the matter is not Res Judicata as the issues raised in the current matter are distinct from what was canvassed in Eldama Ravine matter.
9. Essentially the Applicants argue that this is a succession cause, and the matters are distinct from the burial dispute. They contend that the Court in Eldama Ravine did not determine whether the 3rd Respondent was the wife of the deceased a matter at the heart of the succession matter.
10. The Applicants pray that their application dated 12th May 2022 be allowed.
1ST AND 2ND RESPONDENT SUBMISSIONS
11. The 1st and 2nd respondent support the Applicants in opposing the Preliminary Objection. The decision in Eldama Ravine does not bar the Applicants from claiming as beneficiaries to the estate of the deceased.
ANALYSIS AND DETERMINATION
12. The issue for determination is whether the matter is Res Judicata.
13. Neither the pleadings nor the judgment in the matter in Eldama Ravine was made available to the court. I am therefore unable to determine what the issues were in the matter in Eldama Ravine and the decision rendered.
14. The parties are agreed that the 1st and 2nd Applicants were the initiators but beyond there the Court is invited to be creative as to what transpired before the Court in Eldama Ravine.
15. In Independent Electoral and Boundaries Commission v Jane Cheperenger and others ( 2015) eKLR, the Supreme Court stated;
[21]…The true preliminary objection serves two purposes of merit: firstly it serves as a shield for the originator of the objection- against the profligate deployment of time and other resources. And secondly, it serves the public cause of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement. It is distinctly improper for a party to resort to the preliminary objection as a sword for winning a case otherwise destined to be resolved judicially and on the merits.
16. I find that the preliminary objection as presented does not meet the threshold set out in Mukhisa case which is 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. 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 has to be ascertained or if what is sought is the exercise of judicial discretion.
17. As stated above the Petitioners in presenting this Preliminary Objection have failed to fit it within the confines of Section 7 of the Civil Procedure Act.
For this reason, I make the following orders
a. The Petitioners preliminary Objection dated 26th July 2022 is dismissed.
b. The Application dated 12th May 2022 to proceed for hearing by way of Viva Voce evidence on 24th May 2023
c. The Petitioners are granted leave to file Replying Affidavit within 14 days from the date of this ruling, with corresponding leave to the Applicants to file further affidavit if necessary.
d.Parties to have filed and filed ther respective bundles by 24th May 2023
e. Each party will bear their costs.
It is so ordered.
SIGNED DATED AND DELIVERED IN VIRTUAL COURT THIS 17TH DAY OF MARCH, 2023.
……………………………
In the presence of:
Nyagaka………………….......…. Advocate for Applicant
Ratemo……………………………3rd, 4th and 5th / Petitioners
Murigu…...........…………………1st and 2nd Respondents
Karani Court Assistant