Mutwol v Koima Developers Limited [2025] KEELC 4002 (KLR)

Mutwol v Koima Developers Limited (Environment & Land Case E040 of 2024) [2025] KEELC 4002 (KLR) (26 May 2025) (Ruling)

Neutral citation: [2025] KEELC 4002 (KLR)

Republic of Kenya

In the Environment and Land Court at Eldoret

Environment & Land Case E040 of 2024

EM Washe, J

May 26, 2025

Between

Phyllis Jerotich Mutwol

Plaintiff

and

Koima Developers Limited

Defendant

Ruling

1. The Defendant (hereinafter referred to as “the Applicant”) filed a Preliminary Objection dated 11. 12. 2024 (hereinafter referred to as “the Present P.O”) against the Plaintiff’s (hereinafter referred to as “the Respondent’s”) Plaint dated 26. 06. 2024 together with the Notice of Motion dated 26. 06. 2024 (hereinafter referred to as “the present suit and “the present Application”) respectively on the following grounds; -a.The present suit is Res Judicata to the proceedings known as Eldoret ELC Case No. 250 of 2016 which was between Tarzan Limited-versus- Koima Developers Limited & another which was determined through the Judgement pronounced on the 12. 04. 2021. b.The present suit is Sub Judice to the proceeding known as Court Of Appeal Civil Appeal No. E011 of 2022 between Tarzan Limited-versus- Koima Developers Limited & another which is pending determination before the Court of Appeal.c.In view of the pending proceeding known as Court of Appeal Civil Appeal No. E011 of 2022, this Court does not have jurisdiction to entertain either the present suit and/or the pending Application dated 26. 06. 2024 as these are matters before the Court of Appeal.d.Lastly, the present suit before this Court is an abuse of the Court process and should be dismissed forthwith.

2. The present PO was duly served on the Respondent and the Court directed the same to be canvased by way of written submissions.

3. The Applicant then filed their submissions dated 04. 03. 20225 in support of the present PO while the Respondents filed their submissions on the 25. 03. 2025.

4. The Court has indeed perused the present PO, the present suit as well as the present Application and the issues for determination are as follows; -Issue No. 1- Is the preliminary objection against the present suit sustainable & merited?Issue No. 2- Is the preliminary objection against the present application sustainable and merited?Issue No. 3- who bears the costs of the present PO?

5. The Court having identified the above issues for determination, the same will now be discussed hereinbelow.

Issue No. 1- Is the Preliminary Objection Against the Present Suit Sustainable & Merited? 6. The first issue for determination is the suitability and merit of the present PO raised against the Plaint dated 26. 06. 2024.

7. The Applicant in their submissions have raised two issues of law mainly that the Plaint dated 26. 06. 2024 is Res-Judicata the proceedings known as Eldoret ELC Case No. 250 of 2016 and similarly are Sub-Judice the proceedings known as Court of Appeal Civil Appeal No. E011 of 2022.

8. The Applicant submissions are that the present suit offends the provisions of Section 6 of the Civil Procedure Act, Cap 21 and as such, the Court has no jurisdiction to entertain and determine the present suit.

9. On the other hand, the Respondents submitted that the Present PO was premature and ill-advised for the simple reason that the Court would have to delve into the facts of the proceedings known as Eldoret ELC Case No. 250 of 2016 and the present suit to be able to decide on whether the present suit was Res-Judicata and/or Sub-Judice.

10. The Respondents were of the considered view that such an exercise by this Court requires a full hearing of the parties and can not be determined through the present PO.

11. To resolve this issue, the Court reminds itself of the decision contained in the reported case of Mukhisa Busicuits Manufacturing Company Limited-versus- Westend Distributors Limited (1969) EA 696 wherein the Court stated as follows; -“So far as I am aware, a preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if urged as a preliminary point may dispose of the suit.”

12. Turning to the pleadings before this Court, it is clear that the Defendant has never filed any Statement of Defence against the Respondent’s Plaint dated 26. 06. 2024.

13. In essence, the Applicant has not filed any pleadings against the Plaint dated 26. 06. 2024 raising any Preliminary Objection.

14. In the case of Unilever Tea Kenya Limited-versus- Andrew Cheruiyot Rotich & 3 others (2020) eKLR, the Court made the following observation; -“I have considered the objection, rival submissions, and the pleadings already on record. From a procedural perspective, I think the 1st – 4th defendants made a tactical blunder in the manner they raised the objection. They have not filed a defence to the suit yet. The usual procedure when one is raising a point of law that may conclude a suit before trial is to file a defence first. In that defence, the point that forms the basis of the intended preliminary objection is raised. The intimation of intention to raise the point as a preliminary objection is expressed in the same defence. When the notice to raise the objection comes in later stage, it is not a surprise. The approach is good because it removes the element of surprise. It also serves to contextualize the objection within the defence.

15. In another reported case of George Waweru Njuguna-versus- Pauline Chesang Gitau Kamuyu (2017) eKLR, the Court made the following Observation while dismissing a Preliminary Objection; -"I am in agreement with the plaintiff that the issues raised by the defendant have been wrongly brought before the court by way of a preliminary objection. First, as I have stated earlier in this ruling, the defendant is yet to file a statement of defence to the plaintiff's claim herein. It is clear from the cases cited above that a preliminary objection must arise expressly or by implication from the pleadings. I am of the view that in the absence of a defence on record by the defendant, the defendant's preliminary objection has no basis"

16. The Court having made a finding that the Applicant has not filed any Statement of Defence, then any Preliminary Objection against the Plaint dated 26. 06. 2024 is pre-mature and not merited.

Issue No. 2- Is The Preliminary Objection Against the Present Application Sustainable and Merited? 17. The second issue for determination of whether the present PO is sustainable and merited against the Application dated 26. 06. 2025.

18. In the present PO, the Applicant relies on the pleadings contained in the proceedings known as Eldoret ELC Case No. 250 of 2016 and Court of Appeal Civil Appeal No.E011 of 2022.

19. The Applicant in the present Preliminary Objection pleaded various facts as relates to the two proceedings known as Eldoret ELC Case No. 250 of 2016 and Court Of Appeal Civil Appeal No. E011 of 2022.

20. A Replying Affidavit dated 27. 09. 2024 was filed in answer to the present Application.

21. A perusal of the Replying Affidavit dated 27. 09. 2024 confirms that the Respondents have disputed a majority if not all of the facts pleaded in the present Application.

22. Clearly therefore, this Court is called upon to look at the facts as pleaded before it by the parties and draw its own conclusion.

23. In the case of Oraro-Versus- Mbaja (2005) 1 KLR 141, the Court stated as follows about such scenarios; -“Where a Court needs to investigate facts, a matter cannot be raised as Preliminary Objection. Anything that purports to be a Preliminary Objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence.”

24. Based on the above facts and the judicial finding captured hereinabove, it is clear that this present PO can not be sustained in light of the disputed facts before the Court and is therefore not merited.

Issue No. 3- Who Bears the Costs of the Present PO? 25. On the issue of costs, the same usually follow the event.

26. In the present PO, the Applicant has not been successful in his quest to have both the suit and the pending application struck out and should bear the costs.

Conclusion 27. In conclusion, this Court hereby makes the following Orders in determination of the Preliminary Objection dated 11. 12. 2024; -a.The preliminary objection dated 11. 12. 2024 be and is hereby dismissed.a.The defendant/Applicant will pay the applicable costs related to the preliminary objection dated 11. 12. 2024 to the plaintiff/respondent.

DATED, SIGNED & DELIVERED VIRTUALLY AT ELDORET ELC THIS 26TH DAY OF MAY 2025. EMMANUEL.M. WASHEJUDGEIn the presence of:Court Assistant: BrianAdvocates for the Applicant: Ms. KigetAdvocates for the Respondent: Mr. Kenei