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ELCDismissedKericho CMCC No. 112 of 2014-related; Notice of Motion dated 25th April 2017· [2018] KEELC 3898 (KLR)

Richard Kiplanagat Sigei v Grace Sang [2018] KEELC 3898 (KLR)

Environment and Land Court
16 March 2018
JOJ.M Onyango
975 words in judgment
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The bottom line

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Kenya's Environment and Land Court dismissed a land injunction because the identical request had already been decided in an earlier case.

What this practically means

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Executive summary

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The applicant moved the court by Notice of Motion dated 25th April 2017 under Order 40 Rules 1, 2 and 3 of the Civil Procedure Rules and section 3A of the Civil Procedure Act, seeking an interlocutory injunction restraining the respondent from trespassing on, constructing on, cultivating, surveying, sub-dividing or otherwise interfering with 1.1 acres of land parcel KERICHO/RORET/1388 pending the hearing of the suit, plus costs. The applicant deponed that he purchased the land from the respondent's late husband in 1992 and occupied it peacefully until the respondent's sons began encroaching in 2014. The respondent opposed the application through a replying affidavit sworn on 17th November 2017, contending that the application was res judicata because an identical injunction application in Kericho CMCC No. 112 of 2014 had been dismissed by a ruling delivered on 5th March 2015, and denying any sale, asserting only a lease renewed up to 2013. The court framed two issues: whether the application was res judicata and whether the applicant met the threshold for injunctive relief. Relying on section 7 of the Civil Procedure Act and authorities on the doctrine, the court found the orders sought identical to those previously determined and held the application res judicata. The applicant had not addressed the res judicata plea. The application was dismissed on that ground alone, with costs in the cause.

Key legal issues

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01

Whether the application is res judicata given the prior ruling in Kericho CMCC No. 112 of 2014

Holding

The application is res judicata because the orders sought are exactly the same as those sought and determined in the earlier suit between the same parties

Reasoning

Section 7 of the Civil Procedure Act bars a court from trying any suit or issue directly and substantially in issue in a former suit between the same parties litigating under the same title, heard and finally decided by a competent court. The ruling attached to the respondent's replying affidavit showed the orders in the earlier injunction application were identical to those now sought. The applicant did not rebut the res judicata plea.

p. 2
02

Whether the applicant met the threshold for injunctive relief

Holding

Not reached; the application failed on the res judicata ground alone

Reasoning

Having found the application res judicata, the court held the court had no business entertaining it and dismissed it on that ground alone, without considering the merits of the Giella-type injunction test under Order 40.

p. 2

Legal principles established

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  • Parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit
  • Courts must guard against litigants evading res judicata by dressing up the same claim as a new cause of action

Court orders

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  1. 1.The Notice of Motion dated 25th April 2017 is dismissed for being res judicata
  2. 2.The costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1, 2 and 3
  • Civil Procedure Actsection 3A
  • Civil Procedure Actsection 7

Cases cited (3)

  • E.T V Attorney General & Another
    (2012) eKLR
  • Omondi V National Bank of Kenya Limited and others
    2001 EA 1778
  • Njangu V Wambugu and another
    Nrb HCCC No 2340 of 1991 (unreported)
Jurisdiction invoked
Order 40 Rules 1, 2 and 3 of the Civil Procedure Rules and section 3A of the Civil Procedure 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, "Richard Kiplanagat Sigei v Grace Sang [2018] KEELC 3898 (KLR)", Case Analysis (2018). Kericho CMCC No. 112 of 2014-related; Notice of Motion dated 25th April 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3898/eng@2018-03-16

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