Faiza Oscar Meuli (Suing as the Administrator of the Estate of Aisha Ali Mohamed) v Gideon Nassim Kiti & another [2020] KEELC 753 (KLR)
The bottom line
#A Mombasa court threw out a repeat application for the same injunction, confirming that Kenyan courts will not entertain the same argument twice.
What this practically means
#Executive summary
#Key legal issues
#Res judicata
The Notice of Motion dated 3rd September 2019 is res judicata the application dated 19th November 2018, which sought both temporary and mandatory injunctions over the same suit properties between the same parties and was dismissed on 8th May 2019 after a hearing.
Section 7 of the Civil Procedure Act and Section 28 of the Environment and Land Court Act bar re-litigation of issues directly and substantially in issue in former proceedings between the same parties, heard and finally determined by a competent court. The earlier application sought a mandatory injunction to vacate the same properties; the plaintiff neither appealed nor sought review, and had not set the suit down for hearing. The doctrine applies to interlocutory applications as well as final suits.
Abuse of court process
Re-litigating the mandatory injunction claim constituted an abuse of process warranting dismissal with no order as to costs.
Having had a similar mandatory injunction application heard and dismissed on the merits, the plaintiff could not bring a fresh application raising the same issues. The court invoked the public interest in finality of litigation and the economic use of judicial resources, and dismissed the application, ordering each party to bear their own costs in the circumstances.
Legal principles established
#- The doctrine of res judicata applies to interlocutory applications with the same force as to final ones; an application raising issues substantially litigated and determined between the same parties is barred
- Res judicata bars re-litigation of issues that could have been raised in a prior application between the same parties that was heard and determined
Court orders
#- 1.The Notice of Motion dated 3rd September 2019 seeking a mandatory injunction is dismissed for being res judicata and an abuse of court process
- 2.Each party to bear their own costs
- Jurisdiction invoked
- Environment and Land Court Act (land dispute; Section 28 cited on res judicata bar)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Faiza Oscar Meuli (Suing as the Administrator of the Estate of Aisha Ali Mohamed) v Gideon Nassim Kiti & another [2020] KEELC 753 (KLR)", Case Analysis (2020). Notice of Motion dated 3rd September 2019 (Environment and Land Court suit, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/753/eng@2020-10-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.