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ELCDismissedNotice of Motion dated 5th March, 2018 (arising from Mombasa Misc. Civil Application No. 344 of 2015; Civil Appeal No. 12 of 2016)· [2018] KEELC 1924 (KLR)

Francis Kihoro Kibothi v Catherine Kagendo Mbuna [2018] KEELC 1924 (KLR)

Environment and Land Court
20 September 2018
CYC. Yano
1,405 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 dismissed a tenant's bid for status quo orders, ruling the issue was already decided and bringing it back was an abuse of process.

What this practically means

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Executive summary

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The Applicant, Francis Kihoro Kibothu, moved the Environment and Land Court at Mombasa by Notice of Motion dated 5th March 2018 seeking maintenance of the existing status quo - occupation of a house on Plot No. 2192 Bombolulu at a monthly rent of Kshs.7,000 - pending the hearing and determination of an application he said was dated 16th November 2015. He contended that without conservatory orders he faced imminent eviction from the suit premises, rendering the earlier application nugatory and compromising his right of appeal from the Business Premises Rent Tribunal judgment of 19th June 2015 in Tribunal Case Nos. 68 and 69 of 2014. The Respondent opposed the motion through a Replying Affidavit, contending that the application was res judicata and an abuse of process, that no application dated 16th November 2015 was pending, and that the Applicant had approached the court with unclean hands owing to rent arrears; her Preliminary Objection was withdrawn on 9th April 2018. The court perused the record and found that the application filed on 16th November 2015 (dated 30th October 2015) had already been allowed ex-parte on 8th February 2016 on terms, that those orders were set aside on 15th July 2016, and that the matter had concluded through appeals to the High Court and the Court of Appeal. Applying Section 7 of the Civil Procedure Act and Section 28 of the Environment and Land Court Act, the court held the motion was res judicata, that no orders pending a determined application could issue, and that the motion was an abuse of the court process. The Notice of Motion dated 5th March 2018 was dismissed with costs.

Key legal issues

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01

Res judicata and abuse of court process

Holding

The Notice of Motion dated 5th March 2018 is res judicata and an abuse of the court process because the application dated 16th November 2015 (filed 30th October 2015) was already heard and determined on 8th February 2016, and subsequent litigation including appeals concluded the issue

Reasoning

The court perused the record and found no pending application dated 16th November 2015; the application filed on that date had been allowed ex-parte on 8th February 2016, those orders were later set aside, and appeals to the High Court and Court of Appeal (Civil Appeal No. 28 of 2017) concluded the matter. Section 7 of the Civil Procedure Act and Section 28 of the Environment and Land Court Act bar re-litigation of issues finally determined between the same parties.

p. 2
02

Whether conservatory/status quo orders could issue

Holding

No, since the orders sought were anchored on a non-pending, already determined application

Reasoning

The court found that the substratum of the motion - the application dated 16th November 2015 - had been dispensed with. Granting status quo orders pending its hearing would serve no purpose, and the appeal itself had been struck out, so there was nothing to preserve.

p. 2

Legal principles established

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  • The doctrine of res judicata applies to applications, whether final or interlocutory, with the same force as to suits
  • A court does not make orders in vain; orders pending determination of an already-determined application serve no purpose

Court orders

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  1. 1.The Notice of Motion dated 5th March 2018 is dismissed
  2. 2.Costs of the application awarded to the Respondent
On appeal from
Business Premises Rent Tribunal
Tribunal Case No. 68 and 69 of 2014, Mombasa
Jurisdiction invoked
Section 7 of the Civil Procedure Act; Section 28 of the Environment and Land Court 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, "Francis Kihoro Kibothi v Catherine Kagendo Mbuna [2018] KEELC 1924 (KLR)", Case Analysis (2018). Notice of Motion dated 5th March, 2018 (arising from Mombasa Misc. Civil Application No. 344 of 2015; Civil Appeal No. 12 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1924/eng@2018-09-20

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