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ELCDismissedNot stated in the extract beyond references to consolidated suits (incl. Nairobi ELC Case Number 49 of 2009)· [2018] KEELC 1313 (KLR)

Mohan Galot v Ganeshlal Pushram Galot & 5 others [2018] KEELC 1313 (KLR)

Environment and Land Court
18 October 2018
BEB M Eboso
1,515 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 refused to lift a 2012 stay of proceedings because the same request had already been decided in 2015.

What this practically means

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Executive summary

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The plaintiff brought a notice of motion dated 14/8/2017 seeking to vacate, set aside and/or vary the directions issued on 12/2/2012 staying proceedings in this suit, consolidated with Nairobi ELC Case Number 49 of 2009, pending hearing of Nairobi High Court Civil Case Number 55 of 2012 (Manchester Outfitters Limited v Pravin Galot and 4 others). He argued that the stay was premised on expeditious prosecution of Civil Case Number 55 of 2012, which had not been heard since 2012 owing to delay and a complaint to the Judicial Service Commission against the bench constituted to hear it, and that Manchester Outfitters Limited was not a party to the consolidated suits. The defendants opposed, contending the application was res judicata, a similar application dated 24/1/2014 having been dismissed by Mutungi J on 23/7/2015, and that Order 45 Rule 6 forbids review of a review order. The court framed two questions: res judicata and satisfaction of the review criteria under Section 80 of the Civil Procedure Act and Order 45. On the first, the court found the application invited it to revisit matters already determined by Mutungi J and was barred by Section 7. On the second, it held that inordinate delay was not sufficient reason: the applicant could move Civil Case Number 55 of 2012 directly for fast-tracked disposal, and consent orders had bound the parties to have the directorship and shareholding issue determined by three judges and applied to all related suits. The application was dismissed with costs to be borne by the plaintiff.

Key legal issues

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01

Res judicata as a bar to a second review application

Holding

The application is res judicata because it seeks to revisit matters considered and determined by Mutungi J in the ruling of 23/7/2015 on the earlier application dated 24/1/2014

Reasoning

The court record showed the plaintiff had previously sought review of the same stay order by notice of motion dated 24/1/2014, on the same three grounds under Order 45, and that application was dismissed by Mutungi J on 23/7/2015. Section 7 of the Civil Procedure Act forbids re-litigating matters already decided. The court agreed with the respondent that the application must fail on this basis alone.

p. 2
02

Whether inordinate delay in the hearing of Civil Case Number 55 of 2012 constitutes sufficient reason for review

Holding

Delay does not disclose sufficient ground for review; the proper recourse is to fast-track the hearing of Civil Case Number 55 of 2012

Reasoning

The applicant is a party to Civil Case Number 55 of 2012 and may move that court for quick disposal; he did not explain why he could not pursue that avenue. Parties had also conceded, through consent orders, that determination of the directorship and shareholding issues in Civil Case Number 55 of 2012 would apply to all related suits, so the stay remained rational.

p. 3

Legal principles established

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  • Review jurisdiction is exercised on three grounds: discovery of new and important matter or evidence, error apparent on the face of the record, or sufficient reason
  • Section 7 of the Civil Procedure Act bars a second review application on matters already considered and determined in an earlier review ruling

Court orders

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  1. 1.The plaintiff's notice of motion dated 14/8/2017 is declined
  2. 2.The plaintiff shall bear the costs of the application

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure ActSection 7
  • Civil Procedure ActSections 2A, 2B, 3A and 63
  • Civil Procedure RulesOrder 45
  • Civil Procedure RulesOrder 45 Rule 6
  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 159(2)

Cases cited (1)

  • Manchester Outfitters Limited v Pravin Galot and 4 others
    Nairobi High Court Civil Case Number 55 of 2012 (formerly Civil Case Number 63 of 2009)
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules (review jurisdiction); Sections 2A, 2B, 3A and 63 of the Civil Procedure Act; Article 50 and Article 159(2) of the Constitution invoked by applicant

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, "Mohan Galot v Ganeshlal Pushram Galot & 5 others [2018] KEELC 1313 (KLR)", Case Analysis (2018). Not stated in the extract beyond references to consolidated suits (incl. Nairobi ELC Case Number 49 of 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1313/eng@2018-10-18

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