1.The 1st defendant has raised a notice of preliminary objection on grounds that:a.This suit is a gross abuse of the court process and the court lacks jurisdiction to hear and determine the Application dated June 7, 2023and the main suit since there is prevailing judgment issued by courts of competent jurisdiction in respect of the same subject property i.e Mombasa ELC 282 of 2013 and Civil Appeal 82 of 2018', thus, the suit offends the mandatory provisions of section 7 of the Civil Procedure Act, cap 21 Laws of Kenya.b.That this suit is filed in bad faith and it should be dismissed with costs.
2.The 1st defendant stated that the suit herein is res judicata since the issues in dispute which are the subject matter of the suit herein were heard and determined in ELC No. 282 of 2013 - Mombasa, and Civil Appeal No. 82 of 2018 Mombasa, thus the suit herein is a gross abuse of the court process and the court herein does not have jurisdiction to hear and determine the application and the main suit for being res judicata. The 1st defendant herein was a third party and Housing Finance Corporation was the Plaintiff who had purchased L.R. Nos. Mombasa / Block XXI/ 580, Mombasa Block xx1/581 and Mombasa / Block XXI/ 582 which were a subdivision of Mombasa/ block XX1/577 from the 1st defendant herein.
3.That based on the foregoing the dispute as to the procedure of issuing, granting and registration of all that property formally registered as Mombasa/ Municipality BlockXX1/577 and the resultant subdivisions i.e. Mombasa / Block XXI/ 580, Mombasa Block XXI/581 and Mombasa /Block XXI/ 582, Mombasa / Block XXI/ 583 and Mombasa / Block XXI/ 584 was heard and determined with finality and all the appellate remedies available to the aggrieved parties exhausted.
4.This court has considered the preliminary objection and the submissions therein. Res judicata is a jurisdictional doctrine which is underpinned by section 7 of the Civil Procedure Act which provides thus;7.No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”
6.The Court of Appeal summarized the rationale behind the doctrine of res judicata in the following words;
7.With regard to the doctrine of jurisdiction, it cannot be gainsaid that jurisdiction is what gives courts and other adjudicatory bodies the mandate to determine disputes presented before them. Without jurisdiction, they labour in vain. The Supreme Court of Kenya underscored the centrality of jurisdiction in dispute resolution in the case of Samuel Kamau Macharia v Kenya Kenya Bank Ltd (2012) eKLR in the following words:
9.The plaintiff avers that dispute in ELC 282 of 2013 was instituted by Housing Finance Company Ltd vs Kenya Broadcasting Corporation and Kesko Agro Products as third Party and the issue revolved around the sale and purchase of Mombasa Block XXl/580, 581 and 582. In the said proceedings the 1st defendant denied any correlation between the mentioned suit properties and the said Mombasa Block XXI/577. Further the dispute therein challenged the titles held by Housing Finance. The present suit touches on Mombasa Block XXI/577 and the process of obtaining it was never impugned. The Plaintiff in this suit challenges the validity of the said title. This suit is Ethics and Anti-Corruption Commission vs Kensko Agro Products and others. The court is yet to pronounce itself with regard to the referenced title. The suit does not therefore offend the provisions of section 7 of the Act.
10.This court has to ascertain facts raised above by both counsel as it is their word against each other. I find that where there are disputed facts to the existence of certain facts then the court must call for evidence to prove the same. I find that this preliminary objection is not merited and it is dismissed with costs.
11.It is so ordered.