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ELCDismissedNotice of Motion dated 9th June 2017 (suit not numbered in the excerpt)· [2018] KEELC 3933 (KLR)

Fadhila Zahran Mohamed v Khadiha Abdulkaman Mwinzagu & 2 others [2018] KEELC 3933 (KLR)

Environment and Land Court
19 March 2018
CYC. Yano
1,046 words in judgment
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The bottom line

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Kenya's Environment and Land Court dismissed a repeat injunction application because the same parties had already litigated the same dispute, confirming res judicata blocks even interim applications.

What this practically means

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Executive summary

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By a Notice of Motion dated 9th June 2017, the Defendants sought orders restraining the Defendant by counter-claim (the Respondent to the motion) from interfering with, trespassing into, or dealing with a shop on Plot Number Mombasa/Block XXXVII/13 belonging to the Wakf of the late Mwanamishi Binti Aziz Bin Juma, pending the hearing of the application and of the suit. The Respondent filed a Preliminary Objection dated 12th October 2017 contending that the court lacked jurisdiction, that the application was res judicata as identical issues had been pronounced upon on 30th March 2017 in an earlier application dated 7th December 2016, that a similar prior application had been struck out, and that the application was defective and an abuse of process. The objection was canvassed by written submissions. The court considered Section 7 of the Civil Procedure Act and Section 28 of the Environment and Land Court Act, and set out the essential ingredients of res judicata drawing on the authorities cited by the parties, including that the doctrine applies with the same force to interlocutory applications as to final ones. The court found that the parties in both applications were the same and that both sought restraining orders over the same plot, the current Applicants having been respondents in the previous application, so the issues could and should have been raised there. The court upheld the Preliminary Objection, found the Notice of Motion dated 9th June 2017 to be an abuse of the court process, and dismissed it with costs on 19th March 2018.

Key legal issues

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01

Whether the Notice of Motion dated 9th June 2017 is res judicata

Holding

The application is barred by res judicata as the parties are the same and both applications seek restraining orders over the same subject matter, which the court determined in the earlier decision of 30th March 2017.

Reasoning

The court compared the application dated 7th December 2016 and the ruling of 30th March 2017 with the current motion and found the parties identical and both applications seeking restraining orders over Plot Number Mombasa/Block XXXVII/13. The Applicants were respondents in the previous application, and whatever issues now raised could have been raised then. Section 7 of the Civil Procedure Act and Section 28 of the Environment and Land Court Act therefore bar the application.

p. 3
02

Whether the Preliminary Objection dated 12th October 2017 is merited

Holding

The preliminary objection succeeds and is upheld; the motion is also an abuse of the court process.

Reasoning

Having found that the issues in the motion had been substantially litigated and adjudicated upon by a court of competent jurisdiction, the court concluded that the preliminary objection was merited and that the motion was an abuse of court process, warranting dismissal with costs.

p. 3

Legal principles established

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  • The doctrine of res judicata applies to applications with the same force whether the application be final or interlocutory
  • Section 7 of the Civil Procedure Act bars a court from hearing a suit or issue where the matter directly and substantially in issue was heard and finally decided in a former suit between the same parties

Court orders

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  1. 1.The Preliminary Objection dated 12th October 2017 is upheld
  2. 2.The Notice of Motion dated 9th June 2017 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Environment and Land Court ActSection 28

Cases cited (5)

  • Bernard Mugo Ndegwa –v- James Nderitu Githae & 2 Others
    (2010)eKLR
  • Nancy Mwangi t/a Worthlin Marketers –v- Airtel Network (K) Ltd (formerly Celtel Kenya Ltd) & 2 Others
    (2014)eKLR
  • Kamunye & Other –v- Pioneer General Assurance Society Ltd
    (1971) EA 263
  • John Florence Maritime Services Ltd & Another –v- Cabinet Secretary for Transport and Infrastructure & 3 Others
    (2015)eKLR
  • MWK –v- AMW
    (2016)eKLR
Jurisdiction invoked
Environment and Land Court Act (Section 28 referenced); Civil Procedure Act Section 7

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Fadhila Zahran Mohamed v Khadiha Abdulkaman Mwinzagu & 2 others [2018] KEELC 3933 (KLR)", Case Analysis (2018). Notice of Motion dated 9th June 2017 (suit not numbered in the excerpt). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3933/eng@2018-03-19

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