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ELCDismissedApplication dated 19/4/2021 (arising from judgment delivered 19/7/2019)· [2021] KEELC 3358 (KLR)

Estate of Joshua Wambugu Minjire represented by Caleb Minjire Wambugu v Isaiah Kavulafu & another [2021] KEELC 3358 (KLR)

Environment and Land Court
11 May 2021
MNMWANGI NJOROGE
893 words in judgment
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The bottom line

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The Environment and Land Court in Kitale dismissed a second attempt to pause enforcement of a 2019 land judgment, ruling the issue had already been decided and could not be raised again.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kitale (Mwangi Njoroge J) on a notice of motion dated 19/4/2021 in which the applicants sought a stay of execution of the court's judgment delivered in July 2019, on the ground that they had preferred an appeal to the Court of Appeal which they contended was arguable, and that they would suffer irreparable loss, being left without compensation for consideration paid if evicted, noting also their advanced age and health challenges. The respondent opposed the application as res judicata, an abuse of process and made in bad faith, pointing to an earlier stay application dismissed on 27/11/2019 with no appeal or review against that ruling. The court framed three issues: whether the application was res judicata, whether the applicants were entitled to a stay, and costs. Applying section 7 of the Civil Procedure Act, the court held that the doctrine of res judicata applies to applications just as it does to suits; the identical stay orders had been sought in the earlier application dated 30/8/2019 between the same parties in the same capacity and had been dismissed on the merits because substantial loss had not been demonstrated and the security offered was inadequate. The fact that the appeal had since been filed did not assist the applicants. The application dated 19/4/2021 was dismissed for being res judicata, with no orders as to costs.

Key legal issues

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01

Whether the application dated 19/4/2021 is res judicata

Holding

The application is res judicata because the same stay orders sought were sought and dismissed on the merits in the earlier application dated 30/8/2019 between the same parties in the same capacity.

Reasoning

Section 7 of the Civil Procedure Act bars trying an issue that was directly and substantially in issue in a former suit between the same parties, litigating under the same title, before a competent court, and finally decided. The earlier stay application dated 30/8/2019 was dismissed on 27/11/2019 on the merits (no substantial loss demonstrated; inadequate security). The parties and the orders sought are the same, so the stay question cannot be relitigated. The subsequent filing of the appeal does not alter this.

p. 2

Legal principles established

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  • The doctrine of res judicata applies to applications just as it does to suits.
  • Where an issue between parties has been determined by a competent court, it cannot be raised again between the same parties under section 7 of the Civil Procedure Act.

Court orders

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  1. 1.The application dated 19/4/2021 is dismissed for being res judicata
  2. 2.There shall be no orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 7

Cases cited (4)

  • James Wangalwa & Anor Vs Agnes Naliaka Cheseto
    2021 eKLR
  • Bernard Mugo Ndegwa Vs James Nderitu Githae & 2 Others
    [2010] eKLR
  • George Kitiyo Kamary Vs Stephen Lowasikou Mwei
    [2019] eKLR
  • Monica Wambui Kangangi & Anor Vs John Maina Mugo
    [2021] eKLR
Jurisdiction invoked
Section 7, Civil Procedure Act (res judicata)

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, "Estate of Joshua Wambugu Minjire represented by Caleb Minjire Wambugu v Isaiah Kavulafu & another [2021] KEELC 3358 (KLR)", Case Analysis (2021). Application dated 19/4/2021 (arising from judgment delivered 19/7/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3358/eng@2021-05-11

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