Bunde v Osoro & 2 others (Environment and Land Appeal E017 of 2022) [2024] KEELC 5788 (KLR)
The bottom line
#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 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
#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
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
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.
Whether the applicant should be granted leave to file additional evidence on appeal
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
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.
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.The respondents' preliminary objection dated 16th May 2024 is dismissed
- 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.
It is noteworthy that any matter including an application that is struck out and not dismissed can be reinstated or regenerated by a party
Wherefore, the respondent's preliminary objection dated 16th May 2024 herein, is not tenable and is hereby dismissed.
Costs of the preliminary objection be in the cause.
Issues in the judgment
#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
The case number/suit reference of the matter before the court is not stated anywhere in the ruling
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
Typographical error 'accorder' instead of 'accorded' in paragraph 15
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.