Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment (appellant's application dated 6th May 2024; respondents' preliminary objection dated 16th May 2024)

Bunde v Osoro & 2 others (Environment and Land Appeal E017 of 2022) [2024] KEELC 5788 (KLR)

High Court of Kenya
23 July 2024
1,155 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
This ruling by Ong'ondo J at the High Court, Homa Bay, delivered virtually on 23rd July 2024, disposes of a preliminary objection dated 16th May 2024 raised by the respondents against the appellant/applicant's application dated 6th May 2024 seeking, inter alia, leave to file additional evidence in support of an appeal. The applicant relied on newly discovered documents including a certificate of official search, consent orders and a ruling revoking a grant in Homa Bay High Court Probate and Administration No. 3 of 2018. The respondents contended that the application offended section 7 of the Civil Procedure Act on res judicata, the same orders having been sought in a notice of motion dated 9th October 2023 and an amended notice of motion dated 19th October 2023, which was the subject of a ruling of 18th March 2024; they relied on Siri Ram Kirura v M J E Morgan and Henderson v Henderson, urging that litigation must come to an end. The applicant countered that the earlier application was struck out, not dismissed on the merits, citing Enock Kirao Muhanji v Hamid Abdala Mbarak and Attorney General v Torino Enterprises Ltd. The court held that res judicata requires an earlier decision, a final judgment on the merits and the same parties or privies; since the earlier application was struck out and a struck-out matter can be reinstated (Ngoni Matengo Cooperative Union Ltd v Ali Mohamed Osman), the doctrine was not made out. The preliminary objection was dismissed with costs in the cause.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the preliminary objection grounded on res judicata (section 7 of the Civil Procedure Act) against the application dated 6th May 2024 is tenable

Key legal issues

#
01

Whether the application dated 6th May 2024 is res judicata having regard to the striking out of the earlier amended Notice of Motion dated 19th October 2023

Holding

The application is not res judicata; the earlier application was struck out, not dismissed on the merits, and a struck-out matter can be reinstated, so the preliminary objection fails

Reasoning

The court set out the essential ingredients of res judicata under section 7 of the Civil Procedure Act and Black's Law Dictionary: an earlier decision, a final judgment on the merits, and the same parties or parties in privity. The ruling of 18th March 2024 shows the earlier application was struck out, not dismissed. Citing Ngoni Matengo Cooperative Union Ltd v Ali Mohamed Osman, the court noted a struck-out matter can be reinstated. The court also weighed the applicant's right to a fair hearing under Articles 25(c), 48 and 50(1) of the Constitution.

p. 3
02

Whether the applicant should be granted leave to file additional evidence on appeal

Holding

The court observed that the relevance of the proposed additional evidence must be considered under section 78 of the CPA and the Torino Enterprises decision, but the final disposition dealt only with the preliminary objection

Reasoning

The applicant sought leave to introduce new documents (a certificate of official search, consent orders and a ruling revoking a grant in a probate cause). The court noted it must consider the relevance of proposed additional evidence as envisioned in section 78 of the CPA and as observed in Attorney General v Torino Enterprises Limited, and that a fair hearing must be accorded. However, the ruling disposes only of the preliminary objection; the substantive application was not expressly allowed or dismissed in the orders.

p. 3

Legal principles established

#
  • A matter struck out and not dismissed can be reinstated or regenerated by a party, so res judicata does not attach to it
  • Res judicata requires an earlier decision on the case, a final judgment on the merits, and involvement of the parties or parties in privity
  • A fair opportunity to be heard is a fundamental principle of justice permeating the entire justice system

Court orders

#
  1. 1.The respondents' preliminary objection dated 16th May 2024 is dismissed
  2. 2.Costs of the preliminary objection to be in the cause

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

Jurisdiction invoked
Sections 1A, 1B, 3, 3A and 78(1)(d) of the Civil Procedure Act; Rule 29 of the Court of Appeal Rules; Order 45 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Articles 25(c), 48 and 50(1) of the Constitution of Kenya, 2010

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.

In the instant circumstances, the application does not meet the threshold of Res Judicata doctrine. So, the same cannot stand.
p. 3res judicata threshold
It is noteworthy that any matter including an application that is struck out and not dismissed can be reinstated or regenerated by a party
p. 3effect of striking out versus dismissal
Wherefore, the respondent's preliminary objection dated 16th May 2024 herein, is not tenable and is hereby dismissed.
p. 3final orders
Costs of the preliminary objection be in the cause.
p. 3costs

Issues in the judgment

#
minor

Contradiction in the date of the ruling disposing of the earlier application: the preliminary objection grounds and paragraph 12 refer to a ruling dated 18th March 2024, while the respondents' submissions refer to a ruling delivered on 8th March 2024

minor

The case number/suit reference of the matter before the court is not stated anywhere in the ruling

minor

The court says it 'applied, inter alia, Order 9 of the Oaths and Statutory Rules under the Oaths and Statutory Declarations Act' in striking out the earlier application, which appears to be an erroneous or garbled citation

minor

Typographical error 'accorder' instead of 'accorded' in paragraph 15

minor

The judgment refers to the party as 'respondent/applicant' in ground (b) of the preliminary objection and as 'appellant/applicant' elsewhere; the parties appear to be in an appeal before this court but the lower court and case number are not identified

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Bunde v Osoro & 2 others (Environment and Land Appeal E017 of 2022) [2024] KEELC 5788 (KLR)", Case Analysis (2024). Not stated in the judgment (appellant's application dated 6th May 2024; respondents' preliminary objection dated 16th May 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5788/eng@2024-07-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.