1.This ruling is in respect of the Preliminary Objection dated 15th February 2021 brought by the Respondent seeking for striking out of the applicants’ suit on the following grounds;a.This instant proceedings are barred by the doctrine of estoppel and it is extended form of Res Judicata in Section 7 of the Civil Procedure Act Cap 21 in view of determined proceedings in ELC Case No. 26 of 2014 Galot Industries Ltd vs. Rose Nyaga Njambi & 3 Others and as such is bad in law.b.The applicants alleged cause of action has been determined through ELC Case No. 26 of 2014 Galot Industries Ltd vs. Rose Nyaga Njambi & 3 Others on account of the fact that they were put into possession of the suit property by Rose Njambi who was the 1st Defendant in ELC Case No. 26 of 2014 Galot Industries Ltd vs. Rose Nyaga Njambi & 3 Others through whom they are deemed to have litigated.c.The Applicants alleged cause of action has since been overtaken by events and therefore stands extinguished, since the Applicants have peacefully given up vacant possession of the suit property to the Respondent.
2.By the order of this court made on 13th October 2021, parties were directed to file and exchange submissions in regard to the preliminary objection in 14 days of the said date. On record are submissions filed by the Respondent dated 24th November 2021. No submissions were filed by the Applicants.
3.Counsel for the Respondent submitted that the issue of ownership of the suit property was raised in 2012 and challenged in ELC Case No. 26 of 2014; Galot Industries Ltd vs. Rose Nyaga Njambi & 3 Others. According to counsel, this court pronounced itself on the issue of ownership of parcel L.R. No. 1286/511 located in Mavoko Municipality in ELC Case No. 26 of 2014, on 24th April 2020 where the court affirmed that the Respondents are the registered proprietors of the said parcel.
4.Further, counsel submitted that the judgment debtors being aggrieved with the decision of this court filed an appeal in the Court of Appeal whereof the Court of Appeal dismissed the application for stay of execution on ground that the appeal did not raise arguable grounds.
5.Counsel also pointed out that the Applicants had filed an objection dated 22nd September 2020, against the execution of the decree of this court, but the same was overtaken by events as by then the judgment debtors had already been evicted from the suit property. It was also maintained for the Respondent that the Applicants having given up vacant possession of the suit property to the Respondent on 19th December 2020, their cause of action had been extinguished.
6.Counsel relied on Section 7 of the Civil Procedure Act and argued that in view of the determination of ELC Case No. 26 of 2014, this court is barred from hearing and determining this matter as the issues herein were directly and substantially in issue, in the former suit, which was conclusively determined on 24th April 2020.
7.It was argued for the Respondent that the Applicants herein are tenants of Rose Njambi Nyaga who was the 1st Defendant in ELC Case No. 26 of 2014, and therefore claimants under Rose Njambi Nyaga within the meaning of Section 7 of the Civil Procedure Act. Reliance was placed on the case of Electoral & Boundaries Commission vs. Maina Kiai & 5 Others  eKLR, where the Supreme Court laid down the elements that must be proved to establish the defence of Res Judicata.
8.Counsel for the Respondent also referred to the cases of Okiya Omtatah Okoiti & Another vs Attorney General & Another Petition No. 593 of 2013, Henderson vs Henderson(1) [1843-60] ALL ER 378, E.T vs. Attorney General & Another  eKLR, Omondi vs. National Bank of Kenya Limited & Others  EA 177, Gurbacham vs Yowani Ekori  EA 450 and Nguruman Limited vs. Jan Bonde Nielson & Another  eKLR, which decisions have been considered by the court.
9.Counsel emphasized that this court ought to guard itself against being used as a tool to frustrate execution of its orders and cited the case of Diocese of Eldoret Trustees (Registered) vs. Attorney General (On behalf of the Principal Secretary Treasury) & Another  eKLR for the proposition that adding or subtracting parties in a suit that is substantially and directly related to a previous suit does not sanitize a suit and make it a fresh suit.
10.Counsel argued that the court that determined ELC Case No. 26 of 2014 was competent and had jurisdiction to do so by dint of Article 162 (2) (b) of the Constitution of Kenya and Section 13 of the Environment and Land Court Act No. 19 of 2011.
11.On whether the suit is statute barred, counsel argued that the Applicants cannot claim adverse possession when this court already confirmed that the Respondent is the rightful owner of the suit property. Counsel cited the cases of ANM vs PMN  eKLR, Smt. Usha Jain & Others vs. Manmohan Bajaj & Others [AIR 1980 (Vol 67) M.P 46] and Brahmdeo Chaudhary vs Rishikesh Prasad Jaiswal and Another  (3) SCC 694) which the court has considered.
Analysis and Determination:
12.Having considered the preliminary objection as well as submissions, the issues that arise for determination are;a.Whether the preliminary objection raised is a valid preliminary objection.b.Whether the preliminary objection raised has merit.
13.A preliminary objection is an objection to the suit or any pleading based on pure points of law arising from the pleadings and does not need evidence to be proved. In the case of Mukisa Biscuit Manufacturing Company Limited vs. West End Distributors Limited  EA 696 Law J.A stated as follows;
14.Similarly, in the case of Oraro vs. Mbaja  1 KLR 141, the court held as follows;
15.This position was also upheld by the Supreme Court in the case of Ali Joho & Another vs. Suleiman Said Shabal & 2 Others SCK Petition No. 10 of 2013  eKLR where the Supreme Court held as follows;
16.It is therefore clear that a preliminary objection must only be anchored on pure points of law and not on disputed facts which will need the court to interrogate the truth of such facts.
17.In the instant suit, the Respondent argues that this court is barred from hearing and determining this matter as the issues raised herein are substantially and directly the same as those raised and determined by this court in ELC Case No. 26 of 2014, Galot Industries Ltd vs. Rose Nyaga Njambi & 3 Others, by dint of Section 7 of the Civil Procedure Act.
19.As correctly pointed out by the Respondent, for a party to prove the doctrine of Res Judicata under which Section 7 of the Civil Procedure Act is predicated, they must demonstrate that;a.The suit or issue was directly and substantially in issue in a former suit.b.That the former suit was between the same parties or parties under whom they or any of them claim.c.The issue was heard and finally determined in the former suit.d.The court that heard and determined the suit or issue was competent to try the subsequent suit or issue raised.
20.What therefore arises is whether proof of the elements of Res Judicata set out in Section 7 of the Civil Procedure Act can be done by way of preliminary objection, without recourse to facts. This question was not addressed by the Respondent.
21.In my considered view, proof of the elements stated in Section 7 of the Civil Procedure Act, requires proof of the existence of a previous suit, the parties involved, the issue in controversy and the decision of the court. I have observed elsewhere in several decisions, that the question of Res Judicata ought not be raised as a preliminary objection as it calls on the court to interrogate facts and evidence and therefore it does not constitute a pure point of law. The issue of Res Judicata just like sub judice and all other legal questions that need factual proof ought to be raised by way of Notice of Motion which would ordinarily be supported by affidavit annexed with evidence proving elements under Section 7 of the Civil Procedure Act. Raising the issue of Res Judicata as a preliminary objection is merely increasing costs and does not assist the court in determining that question, as a preliminary objection does not require filing of evidence, as the same must be premised on undisputed facts.
22.In the premises, the preliminary objection raised is not a proper preliminary objection and the same is hereby struck out with no orders as to costs.