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ELCDismissedNotice of Motion dated 7th May 2021 (arising from Bungoma ELC, appeal from CMCC No 1 of 2018, Sirisia)· [2021] KEELC 2597 (KLR)

Eliud Michael Sichei v Tuti Holdings Limited Company [2021] KEELC 2597 (KLR)

Environment and Land Court
15 July 2021
BOBoaz N. Olao
2,130 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Applicant, Eliud Michael Sichei, moved the Environment and Land Court at Bungoma by Notice of Motion dated 7th May 2021, premised on Order 22 Rules 1 and 2, Order 21 Rule 7 and Order 42 Rule 6(2) of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act. He sought to set aside a ruling of Hon. C. M. Wattimah (Senior Resident Magistrate) delivered on 3rd March 2021 in CMCC No 1 of 2018 at Sirisia and an order directing the trial court to recall a decree extracted on 3rd July 2019 for amendment and rectification. His complaint was that although the judgment of 3rd April 2019 awarded the Respondent Kshs. 1,500,000 plus assessed costs of Kshs. 213,465, with no pronouncement on interest, the extracted decree included Kshs. 291,698 as interest, on the strength of which proclamation for Kshs. 2,321,268 had been made. The Respondent, through the replying affidavit of its Director Dr Vincent Wekesa and submissions of Mr J. W. Sichangi, opposed the application as res judicata and an abuse of process. The Court noted that on 20th February 2021 it had dismissed the Applicant's earlier application dated 29th October 2019, which sought, inter alia, stay of execution of the same judgment, and that at the time the Applicant was aware of the decree containing interest. The Court held that res judicata applies to applications as it does to suits, that a litigant cannot litigate in instalments, and that the Applicant had already filed Civil Appeal No 4 of 2021 against the ruling, with the pending appeal capable of determining all issues including interest. The application was found res judicata, frivolous, vexatious and an abuse of process, and was dismissed with costs on 15th July 2021.

Key legal issues

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01

Whether the application dated 7th May 2021 is barred by res judicata under Section 7 of the Civil Procedure Act

Holding

The application is res judicata as it re-agitates the issue of interest in the decree, which was substantially in issue in the Applicant's earlier application dismissed on 20th February 2021

Reasoning

The Applicant was aware, when filing his 29th October 2019 application for stay, that the decree of 3rd July 2019 included Kshs. 291,698.00 as interest. The new application, though crafted as seeking recall and rectification of the decree, seeks essentially the same remedy of challenging the interest component and effectively a stay of the trial court's ruling pending appeal. Having already filed an appeal against that ruling, the Applicant cannot return to the same Court on the same issue.

p. 2
02

Whether the application is frivolous, vexatious and an abuse of the Court process

Holding

It is frivolous, vexatious and an abuse of process; the pending appeal will address all issues including entitlement to interest

Reasoning

There is already a pending appeal against the trial court's judgment in which all issues, including the decree as a whole and the question of interest, can be determined. Filing successive applications questioning separate components of the same judgment amounts to a fishing expedition and abuse of process, which must be stopped.

p. 3

Legal principles established

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  • The doctrine of res judicata applies to applications within a suit as it does to suits.
  • A party aggrieved by a ruling in an application is barred from filing another application on the same issue.
  • A litigant may not litigate in instalments; all points properly belonging to the subject of litigation must be brought forward at the time.

Court orders

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  1. 1.The Notice of Motion dated 7th May 2021 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure RulesOrder 22 Rules 1 and 2
  • Civil Procedure RulesOrder 21 Rule 7
  • Civil Procedure RulesOrder 42 Rule 6(2)

Cases cited (3)

  • James Njuguna Chui v John Njogu Kimani
    2017 eKLR
  • Uhuru Highway Development Ltd v Central Bank of Kenya
    1996 eKLR
  • Henderson v Henderson
    1843 3 Hare 100 [1843 67 E.R 313]
On appeal from
Senior Resident Magistrate's Court, Sirisia
CMCC No 1 of 2018
Jurisdiction invoked
Appellate/supervisory jurisdiction over the subordinate court; application premised on Order 22 Rules 1 and 2, Order 21 Rule 7, Order 42 Rule 6(2) of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Eliud Michael Sichei v Tuti Holdings Limited Company [2021] KEELC 2597 (KLR)", Case Analysis (2021). Notice of Motion dated 7th May 2021 (arising from Bungoma ELC, appeal from CMCC No 1 of 2018, Sirisia). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2597/eng@2021-07-15

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