Danson Kisilu & Jane Wambua v Sammy Wambua Mukeku & Agnes Mutindi Wambua (Suing as the personal representatives of the Estate of Samson Musyoka Wambua ) [2021] KEHC 5059 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MAKUENI

HCCA NO. E020 OF 2020

DANSON KISILU...................................................1ST APPLICANT/APPELLANT

JANE WAMBUA...................................................2ND APPLICANT/ APPELLANT

VERSUS

SAMMY WAMBUA MUKEKU

AGNES MUTINDI WAMBUA (Suing as the personal representatives of the estate of

SAMSON MUSYOKA WAMBUA …RESPONDENTS/OBJECTORS

RULING

1.   This is a Preliminary Objection dated 01/03/2021 seeking to strike out an application by the appellants dated 16/02/2021.

2.   The Preliminary Objection filed by counsel for the respondents is in the following terms –

1) That the application herein lacks merit, it is vexatious, frivolous and an abuse of the court process and the same should be dismissed with costs.

2) That the application herein offends the mandatory provisions of section 6 and 7 of the Civil Procedure Act, Cap 21 Laws of Kenya and Order 51 Rule 4 of the Civil Procedure Rules 2010.

3.  The Preliminary Objection proceeded by way of filing written submissions, and I have perused and considered the submissions of both the respondents (Objectors), and the appellants (applicants).

4. The objector (respondents) has relied on res-judicata. Indeed, the doctrine of res-judicata is anchored under section 7 of the Civil Procedure Act (cap.21) which provides as follows –

“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.”

5.  The respondents have objected to the appellant’s application herein on the basis that it is res-judicata,as a Preliminary Objection. What constitutes a preliminary Objection was clearly stated in the case of Mukisa Biscuit Manufacturing Co. Ltd –vs- West End Distributors Ltd (1969) E.A 696 wherein it was stated –

“A Preliminary Objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit.”

6.   In my view, res-judicata is a point of law. However, the respondents having relied on the ground that the application is res-judicata, they should have come out clear and candid to say that a similar application between the same parties had been heard and substantively determined by a court of competent jurisdiction. They have not done so. Thus their purported Preliminary Objection cannot succeed as res-judicata has not been established.

7.   I thus dismiss the Preliminary Objection herein. Costs will follow the results of the appeal.

Delivered, signed & dated this 22nd day of July, 2021, in open court at Makueni.

………………………………….

GEORGE DULU

JUDGE