The 1st, 2nd, 4th and 5th Defendant/Respondents herein raised a preliminary objection in limine to the plaint and Notice of Motion dated 14th April 2025 on the grounds;
1. That the Plaintiff's suit and application is incompetent as it offends the mandatory provisions of section 7 of the Civil Procedure Act Cap 21 as the suit is res judicata.
2. That the suit and application is an abuse of the court process and as such should be dismissed with costs to the Defendants.
Reasons wherefore the 1st, 2nd, 4th and 5th Defendants pray that the Plaintiff's suit and Notice of Motion be struck out and or dismissed with costs.
This court has considered the preliminary objection and the submissions therein. The Defendants submit that the Plaintiff’s suit is res judicata. The leading decision on Preliminary Objections is the case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd. (1969) EA 696, where the Court held 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 has to be ascertained or if what is sought is the exercise of judicial discretion”.
Similarly, the Supreme Court in Independent Electoral & Boundaries Commission vs Jane Cheperenger & 2 Others (2015) eKLR made the following observation as relates to Preliminary Objections:
“… The true preliminary objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection—against 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.”
I find that the issue of whether or not a matter is res judicata has been properly brought as a preliminary objection and I will proceed to consider the same.
In the case of Kenya Bankers Association vs Kenya Revenue Authority,2019 eKLR the court had this to say on the issue of Res sub judice;
‘‘in addition, it is clear that the maters in issue in the suits or proceedings are directly and substantially the same. The parties in the suits or proceedings are the same. The ex parte applicant herein, is litigating on behalf of its 47 members, some of whom are parties in the existing suits. The suits are pending in the High Court which has jurisdiction to grant the relied claimed.
A cursory look at the prayers sought in this case show that they relate to the same subject matter. However, the principle of sub judice does not talk about
the ‘‘prayers sought’’ but rather ‘‘the matter in issue’’ I find that the matters in issue in the suits are substantially the same. In Re the matter of the Interim Independent Electoral Commission, the Supreme Court cited with approval the Australian decision where it was held: -
‘‘…. we do not think that the word ‘‘matter’’ …means a legal proceeding, but rather the subject matter for determination in a legal proceeding. In our opinion there can be no matter…unless there is some right, duty or liability to be established by the determination of the court…’’
Section 7 of the Civil Procedure Act Provides
"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.”
Expounding further on the essence of the doctrine this Court in John Florence Maritime Services Limited & Another vs Cabinet Secretary for Transport and Infrastructure & 3 Others (2015) eKLR pronounced itself as follows;
“The rationale behind res-judicata is based on the public interest that there should be an end to litigation coupled with the interest to protect a party from facing repetitive litigation over the same matter. Res-judicata ensures the economic use of court’s limited resources and timely termination of cases. Courts are already clogged and overwhelmed. They can hardly spare time to repeat themselves on issues already decided upon. It promotes stability of judgments by reducing the possibility of inconsistency in judgments of concurrent courts. It promotes confidence in the courts and predictability which is one of the essential ingredients in maintaining respect for justice and the rule of law. Without res judicata, the very essence of the rule of law would be in danger of unraveling uncontrollably.”
The Defendants submitted that the Applicant being aggrieved with the decision of the 3rd Defendant filed a constitutional petition in Machakos ELC Petition No. 1 of 2018 Sofia Mukami Muthengi vs National Land Commission & 2 others which was dismissed on the 7th March 2022. This is not disputed but the Plaintiff states that the same was not determined on merit hence it is not res judicata.
I have perused the pleadings of the above- mentioned case and find that the parties are the same and the subject matter is the same. This is informed by the Plaintiff’s own pleadings and is not disputed. The judgement was delivered on the 7th February
2022 and the Petition was dismissed. The Petitioner ought to have appealed and not filed a fresh suit 3 years later! This matter is clearly res judicata. I find the preliminary objection is merited and I uphold the same. I find this suit is an abuse of the court process and not merited and is struck off with costs to the Defendants.
It is so ordered.
1. That the Plaintiff's suit and application is incompetent as it offends the mandatory provisions of section 7 of the Civil Procedure Act Cap 21 as the suit is res judicata.
2. That the suit and application is an abuse of the court process and as such should be dismissed with costs to the Defendants.
Reasons wherefore the 1st, 2nd, 4th and 5th Defendants pray that the Plaintiff's suit and Notice of Motion be struck out and or dismissed with costs.
This court has considered the preliminary objection and the submissions therein. The Defendants submit that the Plaintiff’s suit is res judicata. The leading decision on Preliminary Objections is the case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd. (1969) EA 696, where the Court held 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 has to be ascertained or if what is sought is the exercise of judicial discretion”.
Similarly, the Supreme Court in Independent Electoral & Boundaries Commission vs Jane Cheperenger & 2 Others (2015) eKLR made the following observation as relates to Preliminary Objections:
“… The true preliminary objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection—against 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.”
I find that the issue of whether or not a matter is res judicata has been properly brought as a preliminary objection and I will proceed to consider the same.
In the case of Kenya Bankers Association vs Kenya Revenue Authority,2019 eKLR the court had this to say on the issue of Res sub judice;
‘‘in addition, it is clear that the maters in issue in the suits or proceedings are directly and substantially the same. The parties in the suits or proceedings are the same. The ex parte applicant herein, is litigating on behalf of its 47 members, some of whom are parties in the existing suits. The suits are pending in the High Court which has jurisdiction to grant the relied claimed.
A cursory look at the prayers sought in this case show that they relate to the same subject matter. However, the principle of sub judice does not talk about
the ‘‘prayers sought’’ but rather ‘‘the matter in issue’’ I find that the matters in issue in the suits are substantially the same. In Re the matter of the Interim Independent Electoral Commission, the Supreme Court cited with approval the Australian decision where it was held: -
‘‘…. we do not think that the word ‘‘matter’’ …means a legal proceeding, but rather the subject matter for determination in a legal proceeding. In our opinion there can be no matter…unless there is some right, duty or liability to be established by the determination of the court…’’
Section 7 of the Civil Procedure Act Provides
"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.”
Expounding further on the essence of the doctrine this Court in John Florence Maritime Services Limited & Another vs Cabinet Secretary for Transport and Infrastructure & 3 Others (2015) eKLR pronounced itself as follows;
“The rationale behind res-judicata is based on the public interest that there should be an end to litigation coupled with the interest to protect a party from facing repetitive litigation over the same matter. Res-judicata ensures the economic use of court’s limited resources and timely termination of cases. Courts are already clogged and overwhelmed. They can hardly spare time to repeat themselves on issues already decided upon. It promotes stability of judgments by reducing the possibility of inconsistency in judgments of concurrent courts. It promotes confidence in the courts and predictability which is one of the essential ingredients in maintaining respect for justice and the rule of law. Without res judicata, the very essence of the rule of law would be in danger of unraveling uncontrollably.”
The Defendants submitted that the Applicant being aggrieved with the decision of the 3rd Defendant filed a constitutional petition in Machakos ELC Petition No. 1 of 2018 Sofia Mukami Muthengi vs National Land Commission & 2 others which was dismissed on the 7th March 2022. This is not disputed but the Plaintiff states that the same was not determined on merit hence it is not res judicata.
I have perused the pleadings of the above- mentioned case and find that the parties are the same and the subject matter is the same. This is informed by the Plaintiff’s own pleadings and is not disputed. The judgement was delivered on the 7th February
2022 and the Petition was dismissed. The Petitioner ought to have appealed and not filed a fresh suit 3 years later! This matter is clearly res judicata. I find the preliminary objection is merited and I uphold the same. I find this suit is an abuse of the court process and not merited and is struck off with costs to the Defendants.
It is so ordered.