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ELCDismissed· [2021] KEELC 587 (KLR)

Kariuki Ichuga v Kariuki Wanjohi [2021] KEELC 587 (KLR)

High Court of Kenya at Nyeri
2 December 2021
JOJ. O. OLOLA
1,003 words in judgment
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The bottom line

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The High Court at Nyeri dismissed a refiled land dispute application, confirming that identical applications already decided cannot be brought back to court.

What this practically means

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Executive summary

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By a Notice of Motion dated 31st October 2018, the Appellant, Kariuki Ichuga, sought entry of judgment in terms of an award of the Tetu Land Disputes Tribunal made on 8th April 2003 in Tribunal Case No. 12 of 2002, adoption of a consent order recorded on 26th April 2010 directing the District Land Registrar and Surveyor to fix the disputed boundary, and costs. The award had been adopted in Nyeri Land Award Case No. 10 of 2003 in 2003, and an appeal judgment had been delivered on 14th November 2017 allowing the Appellant's appeal. The Respondent, Kariuki Wanjohi, opposed the motion through a replying affidavit sworn by his advocate, contending that the application offended Section 7 of the Civil Procedure Act because it was identical to an application dated 3rd August 2018 which Justice L. N. Waithaka had dismissed on 2nd October 2018 as res judicata. Justice J. O. Olola agreed, noting the present application was word for word the same as the earlier one dismissed only 29 days previously, and that the issues had already been finally determined by the judgment of 14th November 2017. Relying on Section 7 of the Civil Procedure Act and the Court of Appeal's statement in IEBC v Maina Kiai on the finality that res judicata brings to litigation, the court held the application was res judicata and an abuse of the court process. The motion was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the motion dated 31st October 2018 was barred by res judicata

Holding

The application was identical, word for word, to one dismissed on 2nd October 2018 and was therefore res judicata under Section 7 of the Civil Procedure Act

Reasoning

The court found the present application was the same, word for word, as the application dated 3rd August 2018, which Justice L. N. Waithaka dismissed on 2nd October 2018 as res judicata following the judgment of 14th November 2017. Filing the same application 29 days later offended Section 7 of the Civil Procedure Act and amounted to an abuse of process warranting dismissal with costs.

p. 2
02

Whether the application was an abuse of court process

Holding

Yes; it was filed to relitigate determined issues and abused the process

Reasoning

Having been dismissed once, the re-filed identical application had no basis; the doctrine of res judicata exists to prevent endless litigation and vexatious re-litigation of determined matters between the same parties. The court invoked the IEBC v Maina Kiai statement on finality to hold the application abusive and dismissed it with costs to the Respondent.

p. 2

Legal principles established

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  • There should be an end to litigation; a matter already heard and finally decided between the same parties cannot be relitigated (Section 7, Civil Procedure Act)
  • Res judicata serves the public interest of finality and protects against multiplicity of suits

Court orders

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  1. 1.The Appellant's Notice of Motion dated 31st October 2018 is dismissed
  2. 2.Costs of the application to the Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 7

Cases cited (1)

  • The Independent Electoral and Boundaries Commission -vs- Maina Kiai & 5 Others
    (2017) eKLR
Jurisdiction invoked
Appellate/supervisory jurisdiction of the High Court over the proceedings from the lower court (Tetu Land Disputes Tribunal award adopted in Nyeri Land Award Case No. 10 of 2003); not expressly cited

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, "Kariuki Ichuga v Kariuki Wanjohi [2021] KEELC 587 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/587/eng@2021-12-02

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