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ELCDismissedKisii ELC Case No. 1176 of 2016 (Application dated 2nd June 2020)· [2020] KEELC 669 (KLR)

Chepkoech Daudi Terewa v Francis Kimayo Terewa (Sued As The Administrator Of The Estate Of Shikuku Ole Terewa- Deceased) & another [2020] KEELC 669 (KLR)

Environment and Land Court
9 October 2020
JOJ. M. Onyango
2,250 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to let a land applicant re-run arguments he had already lost, confirming you cannot use new suits to block a judgment being enforced.

What this practically means

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Executive summary

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This was a ruling on an application dated 2nd June 2020 in which Moses Lekakeny Tierewa sought to be enjoined in proceedings between the Plaintiff and Defendant over land parcel TRANSMARA/OSUPUKO/62, and further sought a stay of proceedings and of execution of the orders issued on 6th March 2019 pending hearing of Kilgoris PMELC Case No. 12 of 2020, a fresh suit he had filed over the same land. The background was a suit between two brothers jointly registered as owners of the parcel, resolved by judgment of 9th March 2019 directing a 50:50 division. The Applicant, who had earlier recorded a statement as the Defendant's witness, had previously applied to be enjoined and to have the judgment reviewed; that application was dismissed in the ruling of 28th November 2019. The Plaintiff/Respondent opposed the new application as res judicata and an abuse of process, while the Defendant did not oppose it. The court framed four issues: res judicata, stay of execution, stay of proceedings, and the interest of justice. Applying section 7 of the Civil Procedure Act and the res judicata tests in Uhuru Highway Development v Central Bank and John Florence Maritime Services, the court held the application was res judicata, the same issues having been decided in the ruling of 28th November 2019. It further held that sections 1A and 1B of the Civil Procedure Act confer no power to stay execution of a concluded decree pending a fresh suit, that execution is a lawful process, and that the Applicant's conduct was mischievous and an abuse of process. The application was dismissed with costs to the Plaintiff/Respondent.

Key legal issues

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01

Res judicata

Holding

The application is res judicata because the same issues between the same parties were canvassed and dismissed in the ruling dated 28th November 2019

Reasoning

The Applicant had earlier applied by a notice dated 28th August 2019 to be enjoined, to have the judgment reviewed and for stay of execution. That application was heard and dismissed in the ruling of 28th November 2019, which the Applicant has neither sought to review nor appealed. Re-litigating the same issues between the same parties offends section 7 of the Civil Procedure Act and the rationale of ending litigation and protecting parties from repetitive suits.

p. 3
02

Stay of execution and stay of proceedings under the overriding objective

Holding

Sections 1A and 1B confer no power to stay execution of a decided matter pending a fresh suit; the inherent jurisdiction cannot be invoked to legitimise an abuse of process

Reasoning

The Applicant, having failed in his earlier application, obtained leave to file a fresh suit in the lower court over the same subject matter and now seeks to stay this court's proceedings and decree. The court found this conduct mischievous and an abuse of process. The overriding objective does not override the rights of a successful litigant to execute a lawful decree.

p. 3

Legal principles established

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  • There is no power under sections 1A and 1B of the Civil Procedure Act to stay execution of a concluded decree pending the determination of a new suit
  • Execution is a lawful process and a successful litigant is entitled to reap the fruits of his judgment

Court orders

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  1. 1.The application dated 2nd June 2020 is dismissed
  2. 2.Costs of the application awarded to the Plaintiff/Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure ActSections 1A and 1B

Cases cited (5)

  • Hunter Trading Company Limited v ELF Oil Kenya Limited
    Nai Civil Application No. 6 of 2010 (UR 3/2010)
  • Abok James Odera T/A A.J Odera & Associates v John Macharia & Co.
    Civil Appeal No. 161 of 1999
  • Uhuru Highway Development vs Central Bank
    [1996] LLR CAK 2126
  • John Florence Maritime Services Ltd & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others
    (2015) eKLR
  • Machira T/A Machira & Company Advocates v East African Standard No. 2
    (2002) KLR 63
Jurisdiction invoked
Inherent jurisdiction and Sections 1A and 1B of the Civil Procedure Act (overriding objective); application for joinder and stay in a suit before the ELC

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, "Chepkoech Daudi Terewa v Francis Kimayo Terewa (Sued As The Administrator Of The Estate Of Shikuku Ole Terewa- Deceased) & another [2020] KEELC 669 (KLR)", Case Analysis (2020). Kisii ELC Case No. 1176 of 2016 (Application dated 2nd June 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/669/eng@2020-10-09

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