Telengech v Lonrho Agri Business (E.A LTD) & 5 others (Environment & Land Case 308 of 2017) [2022] KEELC 4 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled a second attempt to revive a dismissed land suit was barred as res judicata, leaving the suit dismissed.
What this practically means
#Executive summary
#Key legal issues
#Whether the notice of motion dated 8th November 2021 is barred by res judicata
Prayer (4) - setting aside the dismissal order of 25th July 2018 (issued 3rd August 2018) and reinstating the suit - is res judicata, as it was heard and finally determined in the application dated 26th July 2018 which was dismissed on 12th April 2019.
The court found the order of 25th July 2018 and the order issued on 3rd August 2018 to be one and the same. The earlier application of 26th July 2018 sought the same reinstatement relief and was dismissed on merit by the ruling of 12th April 2019. Both applications sought to reinstate the same claim dismissed for non-attendance; the parties were the same, litigating under the same title, and the issue had been heard and finally determined by a court of competent jurisdiction. Only the prayer for a new counsel to come on record fell outside the bar.
Whether the plaintiff made a reasonable case for the dismissal order to be set aside and the suit reinstated
No. The claim of non-service of the hearing notice was false, as the plaintiff's counsel was present when the hearing dates were fixed and confirmed and was in court when the suit was dismissed for non-attendance.
The court record showed the plaintiff's counsel present on 7th March 2018 when hearing dates of 25th and 26th July 2018 were fixed, at the mention of 24th May 2018 when the dates were confirmed, and on 25th July 2018 when the suit was dismissed for non-attendance. Since the plaintiff's complaint of non-service of the hearing notice was contradicted by the record, the discretionary relief of reinstatement could not be granted - quite apart from the res judicata bar.
Whether leave should be granted for M/S Chebii & Co-advocates to come on record for the plaintiff
Granted, because a party has a right to be represented by a counsel of his own choice.
This prayer was not caught by res judicata since it was new, and the court upheld the party's right to counsel of choice, allowing prayer (2) of the motion.
Legal principles established
#- Res judicata applies to interlocutory applications: 'suit' under Section 2 of the Civil Procedure Act includes all civil proceedings, including applications, and the bar must be addressed first whenever raised
- The elements of res judicata under Section 7 are conjunctive and must all be satisfied
Court orders
#- 1.Prayer (2) of the notice of motion dated the 8th November 2021 granted, allowing M/S Chebii & Company Advocates to come on record for the plaintiff.
- 2.Prayer (4) of the application (setting aside the dismissal order and reinstating the suit) struck out as res judicata, having been sought and dismissed in the application dated 26th July, 2018 through the ruling of 12th April, 2019.
- 3.Plaintiff to pay the 1st defendant's costs of the application.
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over the suit relating to Soy/Soy Block 10 (Navillus)/1423; application under the Civil Procedure Act (leave, setting aside and reinstatement)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Telengech v Lonrho Agri Business (E.A LTD) & 5 others (Environment & Land Case 308 of 2017) [2022] KEELC 4 (KLR)", Case Analysis (2022). Not stated in the judgment (ELC Eldoret file number not reproduced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/4/eng@2022-05-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.