Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNotice of Motion dated 13th November 2017 (arising from appeal in Mombasa CMCC No. 3443 of 2013)

Loice Khancendi Onyango v Alex Inyangu & Another [2018] KEELC 1918 (KLR)

Environment and Land Court
20 September 2018
JUJUDGE
1,109 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court dismissed a repeated stay application, confirming you cannot re-argue the same issue after losing once.

What this practically means

#

Executive summary

#
By a Notice of Motion dated 13th November 2017, the Appellant, Loice Khachendi Onyango, sought enlargement of time to deposit security of Kshs.1,500,000.00 fixed by the Chief Magistrate's Court on 7th February 2017, revival and reduction of that security, and stay of execution of the decree in Mombasa CMCC No. 3443 of 2013 pending her intended appeal. She supported the application by her affidavit, having been an objector whose objection was dismissed and whose earlier application for stay, dated 22nd February 2017, was dismissed by this court on 7th November 2017. The 1st Respondent, Fred Adhoch, opposed the motion through a replying affidavit, describing it as an abuse of process aimed at delaying justice and made after undue delay. The court, in a judgment delivered at Mombasa on 20th September 2018, held that the application was barred by the doctrine of res judicata: the parties and the issues, including the question of the security deposit, were identical to those in the earlier application which had been heard and determined on 7th November 2017. Section 7 of the Civil Procedure Act and Section 28 of the Environment and Land Act were held to bar re-litigation of finally determined matters, and the principle was stated to apply to interlocutory applications with the same force. The court further found no plausible explanation for the nine-month delay in seeking enlargement of time and declined to exercise its discretion in favour of a litigant who slept on her rights. The motion was dismissed with costs to the 1st Respondent.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Notice of Motion dated 13th November 2017 is barred by the doctrine of res judicata having regard to the application dated 22nd February 2017 dismissed on 7th November 2017
  2. 2.Whether the court should enlarge time within which to deposit the security of Kshs.1,500,000.00 ordered on 7th February 2017
  3. 3.Whether the stay of execution of the decree in Mombasa CMCC No. 3443 of 2013 should be restored/granted

Key legal issues

#
01

Whether the application is res judicata

Holding

Yes; the same parties, seeking the same stay orders over the same decree, were heard and determined in the application of 22nd February 2017 which was dismissed on 7th November 2017.

Reasoning

The court compared the application dated 13th November 2017 with that dated 22nd February 2017 and the ruling of 7th November 2017, finding identical parties and substantially identical issues, including the question of the security deposit. Section 7 of the Civil Procedure Act and Section 28 of the Environment and Land Act bar re-litigation of matters directly and substantially in issue and finally decided between the same parties, and the principle extends to interlocutory applications.

p. 2
02

Whether enlargement of time to deposit security should be granted

Holding

No; the nine-month delay was unexplained and the discretion would not aid a litigant who slept on her rights.

Reasoning

The court held that even if the rules permitted the enlargement, it would not exercise its wide discretion in the applicant's favour given the inordinate, unexplained delay and the applicant's apparent strategy of delaying justice; the overriding objective would not assist her.

p. 2

Legal principles established

#
  • The doctrine of res judicata applies to interlocutory applications with the same force as to final suits
  • The court's discretion to enlarge time will not be exercised in favour of a litigant who slept on her rights and sought to delay the course of justice

Court orders

#
  1. 1.The Notice of Motion dated 13th November 2017 is dismissed
  2. 2.Costs of the application to the 1st Respondent

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

JU
majority

Wrote the judgment

On appeal from
Chief Magistrate's Court, Mombasa
Mombasa CMCC No. 3443 of 2013
Jurisdiction invoked
Appellate/ supervisory jurisdiction of the Environment and Land Court over the Chief Magistrate's Court; Section 28 of the Environment and Land Act

Relief refused

#

Enlargement of time to deposit security of Kshs.1,500,000.00

Made about nine months after the order with no plausible explanation; the issue could have been raised in the earlier application

p. 2

Revival/reduction of the security and restoration and grant of stay of execution of the decree

The application is barred by res judicata, the same issues having been determined in the ruling of 7th November 2017

p. 2

Costs

The application is dismissed with costs to the 1st Respondent

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

For the above reasons, I find that the appellant’s Notice of motion dated 13 th November 2017 lacks merit. The same is hereby dismissed with costs to the 1st Respondent.
p. 2Final orders - dismissal of the motion
By virtue of Section 7 of the Civil Procedure Act, this application is barred by the doctrine of res judicata.
p. 2Res judicata
It has also been stated that the principle applies to applications with the same force whether the application be final or interlocutory.
p. 2Res judicata applies to interlocutory applications
The power of the court should be exercised judiciously and should not be used to aid a litigant who slept on her rights for so long and deliberately sought to delay the course of justice.
p. 2Discretion and delay

Issues in the judgment

#
minor

The judgment refers to 'Article 148 of the Constitution' as bearing on stay of execution, which appears anomalous in this context

minor

The name of the presiding judge is not printed; the judgment is signed only 'JUDGE'

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Loice Khancendi Onyango v Alex Inyangu & Another [2018] KEELC 1918 (KLR)", Case Analysis (2018). Notice of Motion dated 13th November 2017 (arising from appeal in Mombasa CMCC No. 3443 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1918/eng@2018-09-20

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