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ELCStruck OutMalindi High Court Constitutional Petition (with Notice of Motion dated 14th July 2017)· [2017] KEELC 1905 (KLR)

Shahzid Ahmed Yusuf v County Government of Kiliifi [2017] KEELC 1905 (KLR)

High Court of Kenya at Malindi
20 September 2017
JOJ. O. Olola
2,210 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kilifi landowner who kept re-filing the same case lost again—Kenyan courts will strike out repeat litigation over an already-decided dispute.

What this practically means

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Executive summary

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The Petitioner, registered owner of Plot No. 5054/116/Kilifi Township, filed a Notice of Motion dated 14th July 2017 seeking conservatory orders to restrain the County Government of Kilifi from demolishing structures he had erected after obtaining building approvals. The Respondent filed a Notice of Preliminary Objection on three grounds: res judicata by reference to two prior suits between the same parties, failure to exhaust the dispute resolution mechanism under Section 38 of the Physical Planning Act, and abuse of court process. The court reviewed section 7 of the Civil Procedure Act and the authorities on res judicata, including Henderson v Henderson and John Florence Maritime Services. It found that the Petitioner had sought and been refused injunctive relief over the same plot and the same enforcement notice in Malindi ELC No. 95 of 2016, where Angote J dismissed his application on 3rd February 2017 for lack of a prima facie case, and that Malindi High Court Petition No. 2 of 2017 seeking virtually identical conservatory orders was struck out by Weldon Korir J on 29th June 2017 as res judicata and an abuse of process. Two weeks later the Petitioner filed the present Petition asserting no other suit was pending or concluded. Holding the Petition and application to be res judicata and an invitation to judicial anarchy, the court allowed the Preliminary Objection, struck out both the Notice of Motion and the Petition, and awarded the Respondent the costs of both.

Key legal issues

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01

Res judicata

Holding

The Petition and Notice of Motion are res judicata, being a reincarnation of litigation over the same subject matter, the same plot and enforcement notice, between the same parties, previously determined by competent courts

Reasoning

The same conservatory orders sought were sought and refused in Malindi ELC No. 95 of 2016 (Angote J, 3rd February 2017) and the identical Petition was struck out by Weldon Korir J on 29th June 2017 as res judicata and an abuse of process. Filing the present Petition two weeks later seeking virtually similar orders offended section 7 of the Civil Procedure Act and the doctrine's rationale of bringing an end to litigation.

p. 5
02

Abuse of court process

Holding

Filing the Petition two weeks after Korir J had struck out a substantially identical petition constituted a gross abuse of the court's process

Reasoning

The court noted the Petitioner asserted in his petition that no other suit was pending or concluded over the same issues, despite two prior adverse determinations, including one expressly holding his case res judicata. The court held it would not countenance such conduct and invoked its power to strike out both the application and the Petition.

p. 5

Legal principles established

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  • Ingredients of res judicata: same issue directly and substantially in dispute, same parties or parties claiming under them litigating under the same title, and the former court was competent and determined the matter finally
  • Re-litigating a matter already struck out as res judicata is an abuse of court process amounting to an invitation to judicial anarchy

Court orders

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  1. 1.Preliminary Objection allowed
  2. 2.Notice of Motion dated 14th July 2017 struck out
  3. 3.The Petition struck out
  4. 4.Respondent awarded costs of both the Application and the Petition

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Physical Planning ActSection 38

Cases cited (5)

  • Karia & Another v The Attorney General and Others
    (2005) 1 EA 83
  • Henderson v Henderson
    (1843) 67 ER 313
  • John Florence Maritime Services Ltd & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others
    (2015) eKLR
  • Shahzid Ahmed Yusuf v The County Government of Kilifi
    Malindi ELC Case No. 95 of 2016
  • Shahzid Ahmed Yusuf v The County Government of Kilifi
    Malindi High Court Petition No. 2 of 2017
Jurisdiction invoked
Constitutional petition before the High Court (ante-2010-numbered Kilifi Township Plot dispute); jurisdiction contested on res judicata under section 7 of the Civil Procedure Act

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, "Shahzid Ahmed Yusuf v County Government of Kiliifi [2017] KEELC 1905 (KLR)", Case Analysis (2017). Malindi High Court Constitutional Petition (with Notice of Motion dated 14th July 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1905/eng@2017-09-20

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