Automated Summary
Key Facts
The case involves Livingstone Kunini Ole Ntutu (Plaintiff) and the County Council of Narok, Olkiombo Limited, and the Attorney General (Defendants). The 1st Defendant applied to review a 2005 consent judgment in favor of the Plaintiff, alleging it was obtained fraudulently, illegally, and unconstitutionally without the 2nd and 3rd Defendants' participation. The Plaintiff opposed the review, claiming the application is res judicata and an abuse of court process. The court ruled that the application should proceed, allowing the Plaintiff to raise objections in response. The dispute centers on 1,600 hectares of land in the Maasai Mara Game Reserve. Additionally, the 2nd Defendant previously filed a similar 2002 application under sections 3A and 80 of the Civil Procedure Act, which was struck out by consent. The court will assess whether this prior application resolved the same issues between the same parties.
Issues
- The court assesses the validity of the Plaintiff's preliminary objection, which argues that the application is an abuse of process and should be dismissed. The objection's procedural correctness is in question, referencing case law that discourages improper use of preliminary objections to avoid addressing the application's merits.
- The court examines whether the consent judgment was entered fraudulently and unconstitutionally due to the absence of the 2nd and 3rd Defendants. This involves evaluating if the 1st Defendant's application meets the constitutional and procedural requirements for reviewing a judgment when other relevant parties are involved.
- The court must determine if the 1st Defendant's application to review the consent judgment is barred by res judicata and issue estoppel, as the Plaintiff argues that the matter was already addressed in a prior application which was struck out by consent. The issue hinges on whether the current application involves the same parties and issues as the previous one, and if those issues were finally decided.
Holdings
The court ordered that the application for review of the consent judgment be prosecuted, allowing the plaintiff to raise issues in response to it. It was determined that the most expeditious and efficient approach is to proceed with the application rather than disposing of it via preliminary objection.
Remedies
The court directed that the 1st Defendant's application for review of the consent judgment be prosecuted, with the plaintiff's objection to be raised in response. Additionally, the court ordered that the costs of the application should abide the outcome.
Legal Principles
- The court considered whether the current application for review of a consent judgment was barred by res judicata, as a similar application had previously been struck out. The Plaintiff argued that the prior application's dismissal rendered this one res judicata, but the court deferred determination until merits review.
- The Plaintiff's opposition to the review application cited issue estoppel as a ground, asserting the court should not revisit matters already finally decided in a prior application. The court acknowledged estoppel as a potential dispositive legal issue but required factual determination before applying it.
Precedent Name
Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
Cited Statute
Civil Procedure Act (sections 3A and 80)
Judge Name
A. O. Mucelule
Passage Text
- "In my view, the most expeditious and efficient way to deal with the matter at hand is to allow the application be prosecuted and for the Plaintiff to be allowed to raise the issues in the objection in response to the same. I hereby so order, and also ask that costs do abide the application."
- "So far as I am aware, 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. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration."
- "A preliminary objection is in the nature of what used to be a de-murrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issues. This improper practice should stop."