Esther Ng’endo v Sorathia Investment Limited & 4 others
The bottom line
#The Court of Appeal confirmed that if you think a judge wrongly dismissed your case as res judicata, you must appeal — you cannot use review to revive a dead suit.
What this practically means
#Executive summary
#Key legal issues
#Whether an error in a res judicata finding is a proper ground for review under Order 45 of the Civil Procedure Rules
No; a complaint that a judge erred in finding a suit res judicata is a ground of appeal, not of review.
Order 45 Rule 1(1) confines review to discovery of new and important matter, error apparent on the face of the record, or other sufficient reason, without unreasonable delay. A contention that the judge was wrong on res judicata alleges a wrong decision, not an error apparent on the record, and must be pursued on appeal.
Whether the judge erred in finding the delay in filing the review application unreasonable
No; the judge properly exercised his discretion in holding the delay of more than two months after the dismissal of the extension-of-time application was unreasonable.
The appellant was aware of the 26th February 2013 decision, appealed, and only sought review after the extension-of-time application was dismissed on 26th May 2015, showing she was undecided whether to appeal or seek review. Applying the Mbogo & Another v Shah principle, the appellate court does not interfere with a correct exercise of discretion.
Whether the grounds of appeal properly targeted the impugned ruling
The grounds substantively faulted the earlier ruling striking out the suit rather than the ruling dismissing the review application, undermining the appeal.
The Court observed that the memorandum of appeal mainly attacked the decision of 26th February 2013 striking out the suit, an issue res judicata, rather than the ruling of 31st March 2017 dismissing the review application, so the appeal demonstrated no error in the decision under challenge.
Legal principles established
#- A party who contends that a judge erred in finding a suit res judicata must prefer an appeal, not seek review under Order 45 of the Civil Procedure Rules, as that ground does not fall within the circumstances for review.
- An appellate court will not interfere with a trial court's exercise of discretion unless the court misdirected itself or was clearly wrong, resulting in misjustice.
Court orders
#- 1.Appeal dismissed with costs to the respondents
- On appeal from
- Environment and Land Court, Eldoret
- ELC No. 461 of 2012
- Jurisdiction invoked
- First appeal under Rule 31(1)(a) of the Court of Appeal Rules, 2022
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Sikalieh (Suing as the Chairman of Karen & Langata District Association) v De La Salle Brothers & 5 others (Environment and Land Petition 071 of 2024) [2025] KEELC 5685 (KLR)[2025] KEELC 5685 (KLR)29 Jul 2025
- Wabungo v Mwamvula & another (Environment and Land Appeal E003 of 2024) [2025] KEELC 3309 (KLR)[2025] KEELC 3309 (KLR)7 Apr 2025
Cite this brief
#Cite this brief
Caselaw, "Esther Ng’endo v Sorathia Investment Limited & 4 others", Case Analysis (2024). Civil Appeal (Eldoret) - appealed from ELC No. 461 of 2012, Ombwayo J ruling dated 31st March 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/583/eng@2024-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.