Fares Jilo Dhadho & Elija Barisa Galido v Amon Petero Buya [2016] KEELC 1125 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MALINDI

ELC CIVIL CASE NO.1 OF 2014

(Consolidated with ELC No. 26 of 2014)

FARES JILO DHADHO............................................................................PLAINTIFF

=VERSUS=

AMON PETERO BUYA.........................................................................DEFENDANT

IN ELC NO. 26 OF 2014

ELIJA BARISA GALIDO..........................................................................PLAINTIFF

=VERSUS=

AMON PETERO BUYA.........................................................................DEFENDANT

R U L I N G

1. What is before me is the Notice of Preliminary Objection filed by the Defendant dated 18th May 2015.

2. The Defendant has averred in the Preliminary Objection that ELC Civil Case No. 1 of 2014 is res judicataGalole Land Disputes Tribunal Case No. LND, 17C/VOL VI/15 of 5/7/2011 because the issues of fact and law between the parties herein were substantially the same issues before the Tribunal; that those issues were substantially heard and determined by the Tribunal and that a decision was rendered on 18th October 2011 and adopted by the Magistrate's Court in Hola on 5th February, 2014.

3. Although the parties were required to file submissions, the Plaintiff's advocate did not file submissions.

4. The Defendant's/Applicant's advocate filed submission in which he  reiterated the averments in the Notice of Preliminary Objection.

5. I have considered the Preliminary Objection and I am of the view that the issues raised by  the Applicant should be raised at trial.

6. I say so because the proceedings of the Tribunal can only be conclusively considered once the same have been produced in evidence.

7. Considering that a Preliminary Objection is supposed to be an objection purely on a point of law, and in view of the fact that this court is supposed to consider if the proceedings in the Tribunal are res judicata this suit after receiving evidence, I shall not condemn the Plaintiff herein before hearing him.

8. The issue of whether the matter is res judicata or not is further compounded by the fact that this matter was consolidated with ELC Civil Suit No. 2 of 2014 in which the Plaintiff was not a party therein to the proceedings before the Tribunal.

9. The question of this suit being res judicata should therefore be raised as a Defence in the two suits and not as a Preliminary Objection.

10. In the circumstances, I dismiss the Notice of Preliminary Objection dated 18th May, 2015 with costs.

Dated and delivered in Malindi this26th day of February, 2016.

O. A. Angote

Judge