Henry Njue Njiru & 109 others v Jenard Josiah Nyaga & 78 others [2020] KEELC 550 (KLR)
The bottom line
#The court struck out landowners' second attempt to freeze disputed tea-farm land, ruling you cannot re-ask for the same protection after losing once.
What this practically means
#Executive summary
#Key legal issues
#Res judicata as applied to interlocutory applications
The Plaintiffs' conservatory order application was res judicata because it sought substantially the same relief (preservation of the suit property) as the earlier injunction application dismissed on 28th February 2019, and no new facts justified a rehearing.
The court compared the earlier prayer for an order stopping dealings with the suit property with the present prayer for a conservatory order and found both intended to serve the same purpose. The amendments to the plaint and the addition of constitutional provisions did not introduce a new cause of action. The Plaintiffs failed to explain why they did not seek a conservatory order in the earlier application, and the application was not brought under review provisions.
Functus officio
Having delivered its ruling on 28th February 2019, the court was precluded from revisiting the same issue, the instant application being precluded by the functus officio doctrine.
Relying on the Supreme Court's exposition in Raila Odinga v IEBC, the court held that a person vested with adjudicating powers may exercise those powers only once in relation to the same matter. A challenge to the earlier ruling could only be taken on review or appeal, not by a fresh application.
Sub judice, frivolity, abuse of process and the merits of the conservatory order
Not determined, having been rendered unnecessary by the finding on res judicata.
The court expressly declined to consider the remaining issues once res judicata was established, proceeding only to the question of costs.
Legal principles established
#- The general principles of res judicata apply to interlocutory applications as they do to suits, and a party cannot litigate by instalments by bringing successive applications for the same interim relief without new facts discovered after due diligence
- Once a court has delivered a ruling on an interlocutory application it becomes functus officio and cannot reopen the matter except through review under Section 80 of the Civil Procedure Act
Court orders
#- 1.The Plaintiffs' notice of motion dated 2nd December 2019 is struck out with costs
- 2.Costs of the application awarded to the 1st, 2nd, 10th, 11th, 12th, 13th, 18th, 19th, 20th, 22nd, 23rd, 30th & 34th Defendants, to be borne by the Plaintiffs
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 100 of the Civil Procedure Act (Cap. 21); Civil Procedure Rules Order 40 Rule 10, Order 51, Order 1 Rules 9 & 10, Order 8; Articles 22, 23(3)(c), 40 and 159 of the Constitution of Kenya 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Henry Njue Njiru & 109 others v Jenard Josiah Nyaga & 78 others [2020] KEELC 550 (KLR)", Case Analysis (2020). ELC Case (Embu) – suit title not stated in ruling; application dated 2nd December 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/550/eng@2020-10-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.