Wilson Kiarie Kimani (suing as the personal Legal Representative of Margaret Wangui Kimani v Aberdare Investment Limited & 3 others [2019] KEELC 171 (KLR)
The bottom line
#A Kenyan land court threw out defendants' objections, ruling arguments needing evidence must be raised by motion, not preliminary objection.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Notices of Preliminary Objection filed by the Defendants satisfy the ingredients of a proper Preliminary Objection
- 2.Whether the suit is res judicata vis-à-vis Nairobi ELC No. 342 of 2013 and whether that issue can be determined via a Preliminary Objection
- 3.Whether failure to comply with Section 13A of the Government Proceedings Act can be raised and determined by way of Preliminary Objection
Key legal issues
#Whether res judicata can be raised by way of Preliminary Objection
No - determining res judicata requires comparing pleadings and proceedings in the former suit, which involves ascertainment of facts, so it cannot be determined on a Preliminary Objection.
The Court applied the Mukisa Biscuits and Oraro v Mbaja tests: a Preliminary Objection must be a pure point of law founded on the pleadings without disputed facts. To decide whether issues in the present suit were directly and substantially in issue in ELC No. 342 of 2013, the Court would have to call for and scrutinize the proceedings and pleadings of that case. Following George Kama Kimani v County Government of Trans-Nzoia, res judicata is best raised by Notice of Motion with pleadings annexed. Accordingly the objections did not meet the test.
Whether non-compliance with Section 13A of the Government Proceedings Act can be determined via Preliminary Objection
No - the Court found that ascertaining whether the requirements under the Government Proceedings Act were complied with requires probing of evidence.
The 2nd to 4th Defendants contended the suit offended Section 13A(1) of the Government Proceedings Act requiring notice of intention to sue Government to be served on the Attorney General. The Court held that determining compliance would require ascertaining facts, i.e. probing evidence, and thus the issue is not a pure point of law suitable for a Preliminary Objection and fell to be decided at the hearing of the suit.
Whether the Defendants' Notices of Preliminary Objection qualify as Preliminary Objections in law
They do not - they do not raise pure points of law and cannot be determined without ascertainment of facts from elsewhere.
Applying the definitions in Mukisa Biscuits, Quick Enterprises and Avtar Singh Bhamra, the Court reiterated that a Preliminary Objection must stem from the pleadings and be based on pure points of law with no facts to be ascertained. The objections raised res judicata and statutory non-compliance, both of which required calling for and scrutinizing external materials. The objections therefore failed the threshold test and were dismissed entirely with costs.
Legal principles established
#- A Preliminary Objection must raise a pure point of law on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained or judicial discretion exercised.
- An issue of res judicata involves probing of evidence and therefore cannot be determined via a Preliminary Objection; it is best raised by Notice of Motion with pleadings annexed.
Court orders
#- 1.The Notices of Preliminary Objections filed by the Defendants are dismissed entirely with costs to the Plaintiff
- 2.The matter to be set down for hearing and determination on merit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court; suit seeking declaration of ownership of Thika Municipality Block 6/1086
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Consequently, the Court finds and holds that the Notice of Preliminary Objections as filed by the Defendants are not Preliminary Objections as per the Mukisa Biscuits case (supra). For the above reasons, the said Notice of Preliminary Objections are accordingly dismissed entirely with costs to the Plaintiff. Let the matter be set down for hearing and be determined on merit.
A Preliminary Objection must stem or germinate from the pleadings filed by the parties and must be based on pure points of law with no facts to be ascertained.
Anything that purports to be a Preliminary Objection must not deal with disputed facts and it must not derive its foundation from factual information which stands to be tested by rules of evidence
the best way to raise the issue of Res judicata is by way of Notice of Motion where pleadings would be annexed to allow the Court consider whether the issues in the previous suit are similar to the issues in the suit being in issue.
Issues in the judgment
#The Replying Affidavit is stated to have been sworn on 1st July 2018, which precedes the Plaint dated 22nd May 2019 and the Preliminary Objection dated 10th June 2019 - an apparent date inconsistency.
The Plaintiff's Replying Affidavit is quoted as describing the instant suit property as Thika Municipality Block 6/186, whereas the Plaint describes it as Thika Municipality Block 6/1086.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wilson Kiarie Kimani (suing as the personal Legal Representative of Margaret Wangui Kimani v Aberdare Investment Limited & 3 others [2019] KEELC 171 (KLR)", Case Analysis (2019). Thika ELC Suit (Plaint dated 22nd May 2019) - case number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/171/eng@2019-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.