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ELCStruck OutNot stated in judgment (Nakuru Environment and Land Court suit)· [2020] KEELC 3676 (KLR)

Lydia Wanjiru v Kenya Power and Lighting Co. Limited [2020] KEELC 3676 (KLR)

Environment and Land Court
13 February 2020
1,136 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court struck out a fresh land suit against Kenya Power because the same dispute had already been decided, confirming you cannot file a new case instead of appealing.

What this practically means

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Executive summary

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The defendant Kenya Power & Lighting Company Ltd applied by Notice of Motion dated 15th April 2019 for the striking out of the plaintiff's suit as res judicata and an abuse of court process. The plaintiff admitted having earlier filed Nakuru CMCC No. 1143 of 2014 against the same defendant over the same subject matter - the defendant's access to Bahati/Kabatini Block 1/3091 to install a stay wire - but argued that the earlier suit was dismissed for want of jurisdiction and was therefore never heard on the merits. The court called for and perused the subordinate court file, confirming that a preliminary objection grounded on Sections 3, 6(1), 48, 49, 50 and 108 of the Energy Act was upheld and the earlier suit dismissed, with the plaintiff being directed to the Energy Regulatory Commission. Applying Section 7 of the Civil Procedure Act and the elements of res judicata drawn from John Florence Maritime Services and Maithene Malindi Enterprises, the court held that the prior determination by a competent court barred the fresh suit; the plaintiff's remedies lay in review, setting aside or appeal. The application succeeded, the suit was struck out, and the defendant was awarded costs of both the application and the suit. Judgment delivered at Nakuru on 13th February 2020 by D. O. Ohungo J.

Key legal issues

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01

Whether dismissal of a prior suit for want of jurisdiction bars a fresh suit on res judicata

Holding

Yes - the prior dismissal by a court of competent jurisdiction, directing the plaintiff to the Energy Regulatory Commission, rendered the fresh suit res judicata

Reasoning

The court perused the subordinate court file and found an identical subject matter (access to Bahati/Kabatini Block 1/3091 and installation of a stay wire) between the same parties. The preliminary objection on jurisdiction was upheld and the suit dismissed. Having been directed to the Energy Regulatory Commission, the plaintiff's proper recourse was review or appeal, not a fresh suit.

p. 2
02

Whether the suit was an abuse of court process warranting striking out

Holding

Yes, the Notice of Motion dated 15th April 2019 succeeded and the suit was struck out with costs

Reasoning

Res judicata operates as a complete estoppel. The plaintiff admitted the prior suit; the dismissal record confirmed the objection was upheld. The suit was therefore vexatious and an abuse of process and had to be struck out with costs to the defendant.

p. 2

Legal principles established

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  • For res judicata to apply there must be a previous suit over the same matter, same parties or parties litigating under the same title, heard and finally determined by a competent court, and the issue raised again.
  • A plaintiff whose suit is dismissed for want of jurisdiction, with direction to a proper forum, cannot re-litigate the same issue in a fresh suit; the remedies are review, setting aside or appeal.

Court orders

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  1. 1.This suit is struck out
  2. 2.The defendant shall have costs of both the application and the suit

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Energy Act (Cap 314)Sections 3, 6(1), 48, 49, 50 and 108
  • Environment and Land Court ActSection 13

Cases cited (3)

  • Enock Kirao Muhanji v Hamid Abdalla Mbarak
    [2013] eKLR
  • John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others
    [2015] eKLR
  • Maithene Malindi Enterprises Limited v Kaniki Karisa Kaniki & 2 others
    [2018] eKLR
Jurisdiction invoked
Environment and Land Court Act, Section 13 (invoked by plaintiff); Section 7 of the Civil Procedure Act applied by the court

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, "Lydia Wanjiru v Kenya Power and Lighting Co. Limited [2020] KEELC 3676 (KLR)", Case Analysis (2020). Not stated in judgment (Nakuru Environment and Land Court suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3676/eng@2020-02-13

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