Republic v District Land Registrar Kisii County & 2 others Ex-Parte;Richard Nyabando, Elijah Nyagami Gai (Interested Party) [2021] KEELC 2215 (KLR)
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
#Key legal issues
#Whether the judicial review application is res judicata
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
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.
Whether the matter is sub-judice
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
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.
Whether the court lacks jurisdiction
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
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.
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.The Preliminary Objection is upheld
- 2.The Chamber Summons application is struck out
- 3.Costs to the Interested Party
- 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.