1.The matter for determination is a Notice Preliminary of Objection dated 24th January 2022, filed by the 2nd – 5th Interested Parties/Objectors on grounds that;1.The Court lacks jurisdiction to hear and determine the suit as there is a prevailing judgement issued by a competent Court in Muranga ELCA No 12 of 2020; David Ngugi Vs. The Board of Governors, Kamahuha High School.2.That the suit is incompetent as it offends the mandatory provisions of Section 7 of the Civil Procedure Act and is Res Judicata.3.That the suit is bad in law, an abuse of the Court process and should be dismissed.
2.On 23nd February 2022, the Court directed that the Preliminary Objection be canvassed by way of written submissions. In compliance with the said directive, the Interested Parties/Objectors filed their written submissions dated 20thApril 2022. It is the Objectors submissions that all the issues raised by the Applicant in the instant suit were conclusively dealt with in Murang’a ELCA No 12 of 2020: - David Ngugi v The Board of Governors Kamahuha High School. That the Court in the above mentioned suit upheld the decision of the Lower Court with regards to the ownership of the parcel of land No.LOC.17/KAMAHUHA/916. That the Applicant in the instant suit is seeking to have a second bite of the cherry and resuscitate a matter that has already been determined by a Court of Competent Jurisdiction. The Objectors therefore urged this Court to allow the Preliminary Objection and dismiss the entire suit.
3.The Applicant filed his written submissions dated 7th June 2022, through the Law Firm of Charles Mbugua & Co. Advocates opposing the Preliminary Objection. It is his submissions that the Preliminary Objection as filed fails the test of a competent Preliminary Objection as laid out in Mukisa Biscuit Manufacturing and Co. Ltd v West End Distributors and Oraro v Mbajja (2005) Eklr for the reasons that the grounds relied upon are contested and need to be investigated.
5.The Court has carefully read and considered the Preliminary Objection together with the rival written submissions and finds that the issue for determination is whether the Notice of Preliminary Objection is merited
6.A Preliminary Objection was described in the Mukisa Biscuits Manufacturing Co. Ltd…Vs…West End Distributors Ltd (1969) EA 696 to mean: -
7.Further Sir Charles Nebbold, JA stated that:-
9The Supreme Court in the aforementioned case went on to state that;
10.The above being the description of Preliminary Objection, it is evident that a Preliminary Objection, raises a pure point of law, which is premised on the assumption that all facts pleaded by the other side are correct. However, it cannot be raised if any facts have to be ascertained from elsewhere or where the court is called upon to exercise judicial discretion.
11.In determining a Preliminary Objection, the Court will take into account that a Preliminary Objection must stem from the pleadings and that it raises pure point of law. See the case of Avtar Singh Bhamra & Another v Oriental Commercial Bank, Kisumu HCCC No.53 of 2004, where the court held that:-
12In the instant case, the Preliminary Objection is premised on the main ground that the instant suit is res judicata. The principle of res judicata is embedded under Section 7 of the Civil Procedure Act. The same provides as follows:
15.The Court went on to set out the rationale for res judicata as:
16.In a nutshell, res judicata is intended to bring litigation to a halt; it is intended to bar a person who has had his day in a court of competent jurisdiction where his case was concluded from re-litigating his case afresh. The doctrine saves judicial precious time and protects the sanctity of the court to do just what it should do. Therefore, the said doctrine prevents the abuse of the court process by bringing litigation to an end.
17.Based on the foregoing, it is evident that Res Judicata as envisaged under Section 7 of the Civil Procedure Act is a point of law. However, the question that begs an answer is if the same can be determined without calling for evidence from elsewhere. It is trite that issues on law need not be ascertained by evidence as the law speaks for itself.
18.In answering the above question in the negative, the Court will also take into account that the Preliminary Objection must stem from the pleadings and raises pure point of law, and should neither deal with disputed facts nor should it derive its foundation from factual information. See the case of Oraro…Vs…Mbaja(2005) 1KLR 141, where it was held that:-
20.This Court is of the view that for it to be able to ascertain whether or not the matter is Res Judicata, it will have to ascertain the facts as pleaded by the Respondents/Objectors and those as raised by the Applicant/Respondent, by also probing the bundle of documents and calling for the impugned file. In doing so, the Court will be probing evidence. In the case of Henry Wanyama Khaemba…Vs…Standard Chartered Bank Ltd & Another (2014) EKLR, the Court held that:
22.Since a Preliminary Objection cannot be raised on disputed facts and since for the court to decide whether or not the matter is Res Judicata, will require the probing of evidence, the Court finds and holds that what has been raised herein does not amount to a pure Preliminary Objection, as it calls for probing of evidence and ascertaining of facts.
23.Consequently, the Court finds and holds that the Preliminary Objection herein is not merited and the same is dismissed entirely with costs to the Applicant/Respondent.
24.It is so ordered.