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ELCDismissedNot stated in judgment· [2017] KEELC 2242 (KLR)

Sansonne Banini t/a The Maji Beach Boutique Hotel v National Land Commission & 4 others [2017] KEELC 2242 (KLR)

Environment and Land Court
12 July 2017
CYC. Yano
2,480 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court in Mombasa refused a third attempt to file a late defence, ruling the issue had already been decided.

What this practically means

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Executive summary

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By a Notice of Motion dated 6th September 2016, the Interested Party sought leave to file its defence and counter-claim out of time, with the draft pleading deemed duly filed, invoking sections 1A, 1B and 3A of the Civil Procedure Act and Article 159(2)(d) of the Constitution. Counsel for the Interested Party argued that the delay was inadvertent and attributable to the failure of the witness, Titus Kangangi, to sign documents, that the defence raised triable issues, and that a mistake of counsel should not be visited on a party. The Plaintiff and the 1st, 2nd, 3rd and 5th Defendants opposed the application, arguing it was res judicata, since the Court had already dealt with successive applications for time to file the Interested Party's pleadings and had, on 30th August 2016, declined further extension for want of explanation; that the Interested Party, not being a defendant, could not file a counter-claim; and that the application was an abuse of process. The court perused the record, traced the orders of 23rd June 2016, 29th July 2016 and 30th August 2016, and applied Section 7 of the Civil Procedure Act, holding that res judicata applies to applications, final or interlocutory. It held the identical relief had been canvassed and determined, and that the proper remedies were appeal or review. Guided by the Court of Appeal decision in Kantari, it held the overriding objective is not a panacea for all ills. The application was dismissed with costs on 12th July 2017.

Key legal issues

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01

Whether the application was res judicata

Holding

The application was res judicata because the identical relief (leave to file pleadings out of time) had been sought in prior oral applications and finally determined by the Court on 30th August 2016, between the same parties, without appeal or review.

Reasoning

The Court identified two questions: whether the issues before it previously were the same as those in the present application, and whether there was a final determination of those issues. Comparing the orders of 23rd June 2016, 29th July 2016 and 30th August 2016 with the present motion, it found the issues 'similar in all forms' and already adjudicated. Dissatisfaction lay in appeal or review, not a fresh application.

p. 4
02

Whether Article 159(2)(d) and the overriding objective could rescue the application

Holding

No. The constitutional and statutory provisions for procedural leniency could not override the bar of res judicata or excuse the unexplained failure to comply with orders.

Reasoning

The Court acknowledged the invocation of sections 1A, 1B and 3A of the Civil Procedure Act and Article 159(2)(d), but held itself guided by the Court of Appeal decision in Kantari, warning that the overriding objective is not a panacea for all ills and requires a properly laid foundation. The extension of time had been disallowed for good reason.

p. 5

Legal principles established

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  • The doctrine of res judicata under Section 7 of the Civil Procedure Act applies to applications, whether final or interlocutory, with the same force
  • A party who fails to obtain extension of time cannot re-litigate the same relief; the remedy is appeal or review
  • The overriding objective under sections 1A, 1B and 3A of the Civil Procedure Act is not a panacea for all procedural ills; its application must be founded on a proper basis

Court orders

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  1. 1.The Notice of Motion dated 6th September 2016 seeking leave to file the Interested Party's defence and counter-claim is dismissed
  2. 2.Costs of the application awarded to the opposing parties

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure ActSection 7
  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure RulesOrder 7
  • Civil Procedure RulesOrder 11

Cases cited (6)

  • JAMNA KAKAD –V- LUCAS OLUOCH MUMIA (2015)eKLR
    (2015) eKLR
  • ABDALLA ALI BAJABER – VS- MANGALE DZOMBO NGOKA & ANOTHER (2012)eKLR
    (2012) eKLR
  • NICHOLAS KIPTOO ARAP KORIR SALAT –VS- IEBC & OTHERS (2014)eKLR
    (2014) eKLR
  • JOHN FLORENCE MARITIME SERVICES LIMITED & ANOTHER –VS- INFRASTRUCTURE & 3 OTHER (2015) eKLR
    (2015) eKLR
  • WAMUGU MAINA DAMAIYO –VS- GATEWAY INSURANCE COMPANY LTD (2013) eKLR
    (2013) eKLR
  • MRADURA SURESH KANTARI –VS- SURESH NANALAL KANTARI CIVIL APPEAL NO.277 OF 2015 (UNREPORTED)
    Civil Appeal No. 277 of 2015 (Unreported)
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Article 159(2)(d) of the Constitution of Kenya

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, "Sansonne Banini t/a The Maji Beach Boutique Hotel v National Land Commission & 4 others [2017] KEELC 2242 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2242/eng@2017-07-12

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