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ELCStruck OutNot stated in the extract (HCCC at Nakuru)· [2018] KEELC 2822 (KLR)

Dick Kamau Njuguna & 5 others v Nakuru Kiamunyeki Co. Ltd & 6 others [2018] KEELC 2822 (KLR)

High Court of Kenya
19 June 2018
DOD. O. Ohungo
2,283 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The 6th defendant filed a Notice of Motion dated 8th December 2016 under Order 45 rule 1 of the Civil Procedure Rules seeking review of the ruling of A. Mshila J dated 9th February 2015, directions that the Nakuru District Land Registrar not effect entries in the register pursuant to Gazette Notices of 23rd September 2016, a declaration that no enforceable decree exists following the setting aside of consent orders, and nullification of Gazette Notices Nos. 7685 to 7697 as premised on a non-existent decree. The 1st defendant opposed the application, contending that a Notice of Appeal had been filed against the 9th February 2015 ruling, that there was inordinate delay, and that the application was res judicata. The plaintiffs supported dismissal. The court, D. O. Ohungo J, first considered res judicata under Section 7 of the Civil Procedure Act, applying the Court of Appeal's decision in John Florence Maritime Services. It held that the issues raised had already been litigated and determined in the rulings of 9th April 2003 and 9th February 2015, and that res judicata extends to all issues that ought to have been raised previously. The judgment on the consent of 19th November 2002 and the decree of 18th December 2002 remained in force. The application was struck out with costs to the plaintiffs and the 1st defendant. The court further held, in the alternative, that the delay of one year and ten months in filing the review was unreasonable and would independently have justified dismissal.

Key legal issues

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01

Whether the application is res judicata

Holding

Yes - the issues raised had been litigated and determined in the rulings of 9th April 2003 and 9th February 2015

Reasoning

The applicant sought orders whose effect was to stop the Land Registrar from implementing the consent between the plaintiffs and the 1st defendant. That consent had produced a judgment on 19th November 2002 and a decree issued on 18th December 2002, which remains in force. The same issues had been determined in prior rulings, and res judicata extends to matters that ought to have been raised earlier. The application was therefore barred.

p. 3
02

Whether the application was filed without unreasonable delay

Holding

No - the delay of about one year and ten months was unreasonable

Reasoning

The order sought to be review was made on 9th February 2015 but the application was filed on 8th December 2016. Given the applicant's prior engagement in litigation over the same or closely related issues, it was obliged to file the review application immediately. The delay was held to be unreasonable and independently fatal to the application.

p. 4

Legal principles established

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  • Res judicata extends to all issues that ought to have been raised in prior proceedings, and a party dissatisfied with a court's decision should appeal rather than re-litigate
  • An application for review must be made without unreasonable delay under Order 45 rule 1

Court orders

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  1. 1.Notice of Motion dated 8th December 2016 struck out
  2. 2.Costs of the application awarded to the plaintiffs and the 1st defendant

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 rule 1
  • Civil Procedure ActSection 7

Cases cited (4)

  • John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others
    [2015] eKLR
  • Karia & Another v the Attorney General and Others
    [2005] 1 EA 83
  • Henderson v Henderson
    [1843] 67 ER 313
  • Kamunye & others v Pioneer General Assurance Society Ltd
    [1971] E.A. 263
Jurisdiction invoked
Order 45 rule 1 of the Civil Procedure Rules; Section 7 of the Civil Procedure Act (res judicata)

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, "Dick Kamau Njuguna & 5 others v Nakuru Kiamunyeki Co. Ltd & 6 others [2018] KEELC 2822 (KLR)", Case Analysis (2018). Not stated in the extract (HCCC at Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2822/eng@2018-06-19

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