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Court of AppealDismissedCivil Appeal (Application) No. E756 of 2022 (Notice of Motion dated May 15, 2023)· [2023] KECA 1117 (KLR)

The Registered Trustees Africa Gospel Church v Continental Developers Limited & 2 others

Court of Appeal of Kenya
22 September 2023
2,391 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal dismissed a church's second attempt to suspend a land judgment, confirming you cannot refile a rejected application dressed in new clothes.

What this practically means

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Executive summary

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The applicant, The Registered Trustees Africa Gospel Church, moved the Court of Appeal by notice of motion dated May 15, 2023 under rule 5(2)(b) of the Court of Appeal Rules, 2022, seeking stay of execution of the judgment of the Environment and Land Court delivered on August 30, 2022 in ELC No. 252 of 2018, which cancelled its title to Nairobi Block 82/5893 and permanently restrained it from interfering with the land. The appeal against that judgment is Civil Appeal No. E756 of 2022. The 1st and 2nd respondents opposed, contending that the application was res judicata because an identical stay application (Civil Appeal (Application) No. E384 of 2022) by the same applicant, supported by the same deponent, had been dismissed with costs on April 24, 2023. The Court identified res judicata as a preliminary issue and, applying the five conditions in Lotta v Tanaki and the Supreme Court's exposition in Kenya Commercial Bank v Muiri Coffee Estate, held that all elements were satisfied. It rejected the applicant's argument that a pending application for additional evidence could change the character of the application, finding the fresh application to be litigation by instalments and an attempt to have the Court sit on appeal from its own decision. The Court therefore dismissed the notice of motion with costs to the respondents. The substantive appeal in Civil Appeal No. E756 of 2022 remains pending; the merits of the stay (arguability and nugatory-ness) were not re-determined.

Key legal issues

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01

Whether the application for stay of execution was res judicata

Holding

Yes. The identical stay application by the same applicant, on the same judgment, had already been dismissed in Civil Appeal (Application) No. E384 of 2022 on April 24, 2023; the fresh application amounts to litigation by instalments.

Reasoning

The court applied the five co-existent conditions for res judicata from Lotta v Tanaki and the Supreme Court's guidance in Kenya Commercial Bank v Muiri Coffee Estate. All conditions were met: same parties, same subject matter (stay of the same judgment), same relief, decided by a court of competent jurisdiction, and finally determined. The pendency of an application for additional evidence did not change the character of the application or evade the doctrine.

p. 5
02

Whether the applicant met the rule 5(2)(b) tests of an arguable appeal and nugatory-ness

Holding

Not reached on the merits because the application failed on res judicata; the court had already found in the earlier ruling that the applicant had not demonstrated an arguable appeal.

Reasoning

The court restated the settled principles from Stanley Kang'ethe Kinyanjui v Tony Ketter & 5 Others: an applicant must show the appeal is arguable and that it will be rendered nugatory if the substratum is destroyed. However, having found the application res judicata, the court determined the preliminary issue dispositively and did not consider these merits afresh.

p. 3

Legal principles established

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  • A litigant cannot evade res judicata by repackaging an already-determined application; the test is whether the subsequent application would have been superfluous had the orders sought been granted in the earlier one.
  • Res judicata applies between the same parties even where the cause of action and relief differ, and bars issues finally determined in previous litigation.
  • Re-litigating a matter already decided by the same court is tantamount to appealing against its own decision, which the court will not entertain.

Court orders

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  1. 1.The notice of motion dated May 15, 2023 is dismissed
  2. 2.Costs of the application awarded to the respondents
On appeal from
Environment and Land Court (High Court)
Environment and Land Case No. 252 of 2018
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2022

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "The Registered Trustees Africa Gospel Church v Continental Developers Limited & 2 others", Case Analysis (2023). Civil Appeal (Application) No. E756 of 2022 (Notice of Motion dated May 15, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1117/eng@2023-09-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.