Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCStruck OutKisii JR No. 4 of 2019 (Chamber Summons dated 24th November 2020) - number as stated in judgment not expressly given· [2021] KEELC 2215 (KLR)

Republic v District Land Registrar Kisii County & 2 others Ex-Parte;Richard Nyabando, Elijah Nyagami Gai (Interested Party) [2021] KEELC 2215 (KLR)

Environment and Land Court of Kenya
29 July 2021
1,698 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court struck out a fresh land dispute application because the same fight was already decided and an appeal was pending.

What this practically means

#

Executive summary

#
The Ex-parte Applicant, Richard Nyabando, moved the Environment and Land Court at Kisii by Chamber Summons dated 24th November 2020 seeking leave to apply for judicial review orders of certiorari to quash a decision of the Land Registrar of 17th July 2020 (under Ref. KSI/BD/RPTS/CONF/VOL.11/11) revoking land parcel KISII/CENTRAL KITUTU/MWAMANWA/557 and its resultant sub-divisions (parcels 2230, 3448 and 2235) and creating a new survey map sheet; prohibition against enforcement of that decision; mandamus directing the District Land Registrar and County Surveyor to reinstate the parcels and Survey Map Sheets 5 and 7; and that leave operate as a stay. The Applicant contended the revocation was made without hearing him. The Interested Party raised a Preliminary Objection on grounds of res judicata (section 7 of the Civil Procedure Act), sub-judice (section 6), non-disclosure, lack of jurisdiction and abuse of process. The court framed three issues: res judicata, sub-judice and jurisdiction. It found the Applicant had litigated over the same parcel since 2004, notably in Kisii ELC No. 120 of 2004 (judgment by Makhandia J on 17th June 2010, review dismissed by Okong'o J on 14th November 2014) and in a prior judicial review where res judicata was upheld; the decision now challenged was merely the Registrar implementing that judgment. Relying on Joshua Ngartu v Jane Mpinda & 3 Others, the court held the matter both res judicata and sub-judice given the pending Kisumu Civil Appeal No. 90 of 2020, and an abuse of process. The Preliminary Objection was upheld, the application struck out, with costs to the Interested Party.

Key legal issues

#
01

Whether the judicial review application is res judicata

Holding

The matter is res judicata; the same issues between the same parties were determined in Kisii ELC No. 120 of 2004 (judgment of 17th June 2010, ruling of 14th November 2014) and in Kisii JR No. 4 of 2019

Reasoning

The Ex-parte Applicant has been litigating over parcel CENTRAL KITUTU/MWAMANWA/557 since 2004, first as Gechure Nyabando and now as Richard Nyabando. The Land Registrar's actions of 17th July 2020 were merely implementing Makhandia J's judgment of 17th June 2010. The court, relying on Joshua Ngartu v Jane Mpinda, held that litigants cannot evade res judicata by adding new causes of action or cosmetic face lifts to a previously resolved dispute.

p. 3
02

Whether the matter is sub-judice

Holding

The matter is sub-judice since the same subject matter is pending before the Court of Appeal in Civil Appeal No. 90 of 2020 at Kisumu

Reasoning

By the Applicant's own admission an appeal touching on the same subject matter is pending before the Court of Appeal at Kisumu. The court found it unclear why the Applicant instituted another judicial review application on a matter pending in the Court of Appeal, concluding that this is not a proper use of the court process and that the Applicant should pursue the appeal to its conclusion.

p. 3
03

Whether the court lacks jurisdiction

Holding

The court upheld the Preliminary Objection on abuse of process grounds, treating the application as an abuse of process rather than expressly ruling on jurisdiction

Reasoning

The court found merit in the Preliminary Objection on the grounds of res judicata and sub-judice and abuse of court process, and struck out the application. It did not separately pronounce on theInterested Party's contention that the court lacked jurisdiction to sit on appeal over a court of the same status, but the finding of abuse of process disposed of the application.

p. 3

Legal principles established

#
  • Parties cannot evade the doctrine of res judicata by adding other parties or causes of action, or by giving their case a cosmetic face lift in subsequent suits
  • Instituting multiple proceedings over a matter pending in the Court of Appeal is an abuse of the court process

Court orders

#
  1. 1.The Preliminary Objection is upheld
  2. 2.The Chamber Summons application is struck out
  3. 3.Costs to the Interested Party

Authorities

#

Legislation

  • Civil Procedure Actsection 7
  • Civil Procedure Actsection 6
  • Limitation of Actions Act

Cases cited (4)

  • Joshua Ngartu v Jane Mpinda & 3 Others
    (2019) eKLR
  • Attorney General & Another v ET
    (2012) eKLR
  • Omondi v National Bank & Others
    (2001) EA 177
  • Njanju v Wambugu & Another
    HCCC No. 2430 of 1991 (unreported)
Jurisdiction invoked
Judicial review jurisdiction of the Environment and Land Court (orders of certiorari, prohibition and mandamus); no specific provision invoked in the judgment

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Republic v District Land Registrar Kisii County & 2 others Ex-Parte;Richard Nyabando, Elijah Nyagami Gai (Interested Party) [2021] KEELC 2215 (KLR)", Case Analysis (2021). Kisii JR No. 4 of 2019 (Chamber Summons dated 24th November 2020) - number as stated in judgment not expressly given. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2215/eng@2021-07-29

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