Tolelinyang Lomongoni v Chemoru Tolelinyang (Environment & Land Case 15 of 2018) [2019] KEELC 4227 (KLR)
The bottom line
#A Kenyan landowner's second attempt to get land surveyed was dismissed because the same dispute had already been decided between the same parties.
What this practically means
#Executive summary
#Key legal issues
#Whether the application is res judicata having regard to Kitale ELC No. 76 of 2017
Yes; the issues were litigated before a competent court by the same parties and the application offends Section 7 of the Civil Procedure Act
The court, having itself adjudicated ELC No. 76 of 2017 (a suit by the applicant for removal of the respondent's caution over the same parcel), perused that judgment and found the present survey application touches issues already litigated between the same parties. The application therefore runs afoul of Section 7 of the Civil Procedure Act, and the second issue cannot be determined.
Whether the application was properly instituted by way of miscellaneous application
No; there is no law in the cited provisions warranting institution by miscellaneous application, and the procedure is incompetent contrary to Order 3 Rule 1
The applicant relied on Article 159, Order 51 Rule 1, Sections 1A, 1B and 3A of the Civil Procedure Act and Sections 24(A) and 28 of the Land Registration Act. The court found no basis in those provisions for a miscellaneous application and, following Peter Kwema Kahoro and Geoffrey Ndungu Theuri, held that such an application must be mounted within a filed suit in the prescribed manner.
Legal principles established
#- For a matter to be res judicata, the matters in issue must be similar to those previously in dispute between the same parties and determined on merits by a court of competent jurisdiction
- An application of the nature sought must be instituted within a filed suit in the manner prescribed by law and cannot be brought as a miscellaneous application under enabling-procedure provisions
Court orders
#- 1.The application dated 19/10/2018 is dismissed with costs to the respondents.
- Jurisdiction invoked
- Article 159 of the Constitution of Kenya; Order 51 Rule 1 Civil Procedure Rules; Sections 1A, 1B and 3A Civil Procedure Act; Sections 24(A) and 28 Land Registration Act No. 3 of 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tolelinyang Lomongoni v Chemoru Tolelinyang (Environment & Land Case 15 of 2018) [2019] KEELC 4227 (KLR)", Case Analysis (2019). Miscellaneous Application dated 19/10/2018 (Kitale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4227/eng@2019-03-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.