' David Mamboleo , the Applicant herein, filed the Notice of Motion dated 17 th February 2025 seeking various orders primarily aimed at striking out a Preliminary Objection dated 22nd January 2025. The Applicant argues that the Objection, filed by the 1 st Petitioner, Stephen Ongwae Mamboleo , was submitted late, on 3rd February 2025, which was well outside the 7-day leave period granted by the court.
Additionally, the Applicant claims he only received the Objection via an unknown number on the evening of 12th February 2025 and that no affidavit of service is on record. He notes that the court had directed the matter be heard on 17th February 2025 and a ruling set for 24th April 2025, but he was unable to file timely submissions due to being actively employed and falling ill on 16th February.
The Applicant contends that, in the interest of justice, the Preliminary Objection should be struck out or alternatively, he be granted leave to file his response and submissions, which he has attached for the court’s consideration. The Applicant maintains that the application is made on the grounds of fairness, equity, and the right to be heard, and adds that it has been filed without unreasonable delay.
In his response to the Application, Stephen O. Mamboleo Ongwae , the 1st Proposed Administrator, asserts that the court granted him leave to file a Preliminary Objection based on the doctrine of res judicata on 22nd January 2025, but denies that the court imposed a strict 7-day limit as claimed by the Applicant. He defends the filing of the Preliminary Objection on 3rd February 2025, only slightly outside the alleged deadline, and argues that late service on the Applicant does not vitiate the Objection.
He questions the Applicant’s credibility, noting that David managed to file his application under certificate of urgency on 17th February despite claiming to be on bed rest. Stephen further accuses David of dishonesty, referencing a previous case ( Nyamira MCDC 10 of 2022 ) and claiming the attached “confidential medical report” is fraudulent.
Stephen maintains that the Preliminary Objection is valid and meritorious as it raises a pure point of law based on res judicata , which he argues, could dispose of the protest entirely. He refers to prior related cases ( MCECL 057 of 2021 and ELC 003 of 2023 ) and emphasizes that the Environment and Land Court (ELC) already ruled on similar issues when it found no merit in the claims of David Mamboleo’s mother, who had asserted a registrable interest in the estate.
According to Stephen, the ELC''s decision is final and binding, and cannot be revisited in this court. He concludes by urging the Honourable Court to proceed with highlighting the parties’ submissions at the current sitting in the interest of justice and expediency.
I have carefully considered the pleadings filed herein and I find that the following issues arise for determination: -
Whether the Preliminary Objection filed by Stephen O. Mamboleo Ongwae was filed and served within time, and whether any delay invalidates it.
Whether the doctrine of res judicata applies to bar the present proceedings or protest by the Applicant, David Mamboleo.
Whether the court should proceed to highlight submissions or dismiss the matter at the preliminary stage.
Whether the Applicant has approached this Court with clean hands in light of allegations of dishonesty.
Analysis and Determination:
Timeliness and Validity of the Preliminary Objection
It was not disputed that, on 22nd January 2025, this Court granted the 1st Proposed Administrator, Stephen O. Mamboleo Ongwae, leave to file a Preliminary Objection. The Applicant contends that the said objection was to be filed and served within seven (7) days. However, Stephen filed the Preliminary Objection on 3rd February 2025 and served it late.
This Court however notes that the leave granted did not expressly stipulate a strict 7-day timeline, and that no formal order imposing such a deadline has been produced before the Court. I find that the delay in filing the preliminary objection was minimal, and that in the interest of substantive justice, the Court is inclined to consider the Preliminary Objection on its merits, guided by Article 159(2)(d) of the Constitution of Kenya, which enjoins courts to administer justice without undue regard to procedural technicalities. I am also guided by the decision in Mwangi S. Kimenyi vs. Attorney General & Another [2014] eKLR , where the Court emphasized that rules of procedure are handmaidens of justice and not its mistress.
2. Applicability of the Doctrine of Res Judicata
Stephen argued that the Applicant’s protest is res judicata, citing previous proceedings in MCECL 057 of 2021 , ELC 003 of 2023 , and Nyamira MCDC 10 of 2022 , where the Environment and Land Court allegedly conclusively determined the issue of whether the Applicant’s mother had any registrable interest in the estate property.
The doctrine of res judicata is encapsulated under Section 7 of the Civil Procedure Act , which bars the re-litigation of matters directly and substantially in issue in a former suit between the same parties (or those claiming under them), which has been heard and finally decided by a court of competent jurisdiction. In Henderson vs. Henderson (1843) 67 ER 313 , followed in E.T. vs. Attorney General & Another [2012] eKLR , it was held that a party should not raise in subsequent proceedings what ought to have been raised in earlier ones.
My finding is that the Environment and Land Court, being constitutionally mandated, under Article 162(2)(b) of the Constitution, to handle land and environmental disputes, is a court of competent jurisdiction. I further find that if indeed the issues raised in the protest were conclusively determined before the ELC, then the matter before this court is res judicata.
I have considered the evidence contained in the rulings attached to the Preliminary Objection and noted that the same was not rebutted adequately by the Applicant, this Court finds that the substance of the Applicant’s claims was indeed previously litigated and conclusively determined.
Submissions and Further Proceedings
Given the finding that the Preliminary Objection raises a pure point of law that may dispose of the protest in its entirety, and having found merit in the res judicata plea, the Court holds that it would be an abuse of court process to proceed with the hearing and highlighting of submissions. In Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd [1969] EA 696 , it was held that a preliminary objection consists of a point of law which, if argued as a preliminary point, may dispose of the suit.
Credibility of the Applicant
Stephen raised issues concerning the Applicant’s alleged dishonesty, particularly, the claim that he filed the present application under urgency despite claiming to be on bed rest, and submitted a purported “confidential medical report” deemed fraudulent. While these allegations are serious, the Court declines to delve into matters of personal credibility at this stage as they do not materially affect the legal issue of res judicata, which is dispositive in this instance.
Conclusion and Orders:
Having considered the pleadings, the Preliminary Objection, and the applicable law, I make the following final orders:
The Preliminary Objection dated 3rd February 2025 is upheld .
The protest and application filed by the Applicant, David Mamboleo, dated 17th February 2025, is hereby dismissed with costs to the 1st Proposed Administrator.
The parties are directed to proceed with the administration of the estate in accordance with the prior court decisions and in line with the rulings of the Environment and Land Court.
Orders accordingly.
'
Additionally, the Applicant claims he only received the Objection via an unknown number on the evening of 12th February 2025 and that no affidavit of service is on record. He notes that the court had directed the matter be heard on 17th February 2025 and a ruling set for 24th April 2025, but he was unable to file timely submissions due to being actively employed and falling ill on 16th February.
The Applicant contends that, in the interest of justice, the Preliminary Objection should be struck out or alternatively, he be granted leave to file his response and submissions, which he has attached for the court’s consideration. The Applicant maintains that the application is made on the grounds of fairness, equity, and the right to be heard, and adds that it has been filed without unreasonable delay.
In his response to the Application, Stephen O. Mamboleo Ongwae , the 1st Proposed Administrator, asserts that the court granted him leave to file a Preliminary Objection based on the doctrine of res judicata on 22nd January 2025, but denies that the court imposed a strict 7-day limit as claimed by the Applicant. He defends the filing of the Preliminary Objection on 3rd February 2025, only slightly outside the alleged deadline, and argues that late service on the Applicant does not vitiate the Objection.
He questions the Applicant’s credibility, noting that David managed to file his application under certificate of urgency on 17th February despite claiming to be on bed rest. Stephen further accuses David of dishonesty, referencing a previous case ( Nyamira MCDC 10 of 2022 ) and claiming the attached “confidential medical report” is fraudulent.
Stephen maintains that the Preliminary Objection is valid and meritorious as it raises a pure point of law based on res judicata , which he argues, could dispose of the protest entirely. He refers to prior related cases ( MCECL 057 of 2021 and ELC 003 of 2023 ) and emphasizes that the Environment and Land Court (ELC) already ruled on similar issues when it found no merit in the claims of David Mamboleo’s mother, who had asserted a registrable interest in the estate.
According to Stephen, the ELC''s decision is final and binding, and cannot be revisited in this court. He concludes by urging the Honourable Court to proceed with highlighting the parties’ submissions at the current sitting in the interest of justice and expediency.
I have carefully considered the pleadings filed herein and I find that the following issues arise for determination: -
Whether the Preliminary Objection filed by Stephen O. Mamboleo Ongwae was filed and served within time, and whether any delay invalidates it.
Whether the doctrine of res judicata applies to bar the present proceedings or protest by the Applicant, David Mamboleo.
Whether the court should proceed to highlight submissions or dismiss the matter at the preliminary stage.
Whether the Applicant has approached this Court with clean hands in light of allegations of dishonesty.
Analysis and Determination:
Timeliness and Validity of the Preliminary Objection
It was not disputed that, on 22nd January 2025, this Court granted the 1st Proposed Administrator, Stephen O. Mamboleo Ongwae, leave to file a Preliminary Objection. The Applicant contends that the said objection was to be filed and served within seven (7) days. However, Stephen filed the Preliminary Objection on 3rd February 2025 and served it late.
This Court however notes that the leave granted did not expressly stipulate a strict 7-day timeline, and that no formal order imposing such a deadline has been produced before the Court. I find that the delay in filing the preliminary objection was minimal, and that in the interest of substantive justice, the Court is inclined to consider the Preliminary Objection on its merits, guided by Article 159(2)(d) of the Constitution of Kenya, which enjoins courts to administer justice without undue regard to procedural technicalities. I am also guided by the decision in Mwangi S. Kimenyi vs. Attorney General & Another [2014] eKLR , where the Court emphasized that rules of procedure are handmaidens of justice and not its mistress.
2. Applicability of the Doctrine of Res Judicata
Stephen argued that the Applicant’s protest is res judicata, citing previous proceedings in MCECL 057 of 2021 , ELC 003 of 2023 , and Nyamira MCDC 10 of 2022 , where the Environment and Land Court allegedly conclusively determined the issue of whether the Applicant’s mother had any registrable interest in the estate property.
The doctrine of res judicata is encapsulated under Section 7 of the Civil Procedure Act , which bars the re-litigation of matters directly and substantially in issue in a former suit between the same parties (or those claiming under them), which has been heard and finally decided by a court of competent jurisdiction. In Henderson vs. Henderson (1843) 67 ER 313 , followed in E.T. vs. Attorney General & Another [2012] eKLR , it was held that a party should not raise in subsequent proceedings what ought to have been raised in earlier ones.
My finding is that the Environment and Land Court, being constitutionally mandated, under Article 162(2)(b) of the Constitution, to handle land and environmental disputes, is a court of competent jurisdiction. I further find that if indeed the issues raised in the protest were conclusively determined before the ELC, then the matter before this court is res judicata.
I have considered the evidence contained in the rulings attached to the Preliminary Objection and noted that the same was not rebutted adequately by the Applicant, this Court finds that the substance of the Applicant’s claims was indeed previously litigated and conclusively determined.
Submissions and Further Proceedings
Given the finding that the Preliminary Objection raises a pure point of law that may dispose of the protest in its entirety, and having found merit in the res judicata plea, the Court holds that it would be an abuse of court process to proceed with the hearing and highlighting of submissions. In Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd [1969] EA 696 , it was held that a preliminary objection consists of a point of law which, if argued as a preliminary point, may dispose of the suit.
Credibility of the Applicant
Stephen raised issues concerning the Applicant’s alleged dishonesty, particularly, the claim that he filed the present application under urgency despite claiming to be on bed rest, and submitted a purported “confidential medical report” deemed fraudulent. While these allegations are serious, the Court declines to delve into matters of personal credibility at this stage as they do not materially affect the legal issue of res judicata, which is dispositive in this instance.
Conclusion and Orders:
Having considered the pleadings, the Preliminary Objection, and the applicable law, I make the following final orders:
The Preliminary Objection dated 3rd February 2025 is upheld .
The protest and application filed by the Applicant, David Mamboleo, dated 17th February 2025, is hereby dismissed with costs to the 1st Proposed Administrator.
The parties are directed to proceed with the administration of the estate in accordance with the prior court decisions and in line with the rulings of the Environment and Land Court.
Orders accordingly.
'