Parmjit Kaur Alias Mandeep Kaur v Avtar Singh Suri [2022] KEELC 449 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a third attempt to overturn a 2014 consent order, confirming you cannot endlessly re-litigate issues a court has already decided.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction over a third application for review
The court had no jurisdiction; Order 45 Rule 6 bars a second or subsequent application for review, and a pending Notice of Appeal further bars review
The applicant had already had two review applications dismissed. Order 45 Rule 6 of the Civil Procedure Rules 2010 expressly bars a subsequent review application. Further, having filed a Notice of Appeal dated 22nd December 2020 against the ruling of 10th December 2020, the applicant could not pursue review while keeping the appeal open. Following the Lillian S principle, the court had to down its tools.
Res judicata
The application was res judicata, barred by Section 7 of the Civil Procedure Act, since the same issues had been raised and decided in the application of 25th November 2019
The issues in the current application - that the consent was entered without instructions - were the same as those litigated in the application dated 25th November 2019, which was dismissed on 5th May 2020. Issues already raised, ventilated and ruled upon cannot be re-agitated. The court relied on John Florence Maritime Services on the public interest rationale of res judicata.
Abuse of court process
The application was a vexatious, third successive attack on the same consent order and constituted an abuse of the due process of the court
Having filed two prior applications challenging the same consent, both dismissed, the applicant returned with a third. Relying on Muchanga Investments and the Nigerian authority Saraki v Kotoye, the court held that instituting a multiplicity of processes on the same subject matter between the same parties is an abuse of judicial process, which the court's inherent jurisdiction must be invoked to stall.
Legal principles established
#- Jurisdiction is everything; a court must down its tools the moment it discovers it has no jurisdiction
- A court's jurisdiction flows only from the Constitution or legislation and cannot be arrogated
- Order 45 Rule 6 bars a subsequent application for review of an order made on an application for review
- A party who has filed a Notice of Appeal cannot seek review until the notice is withdrawn
- Res judicata bars re-agitation of issues already decided
- A multiplicity of applications on the same subject matter constitutes abuse of court process which the court's inherent jurisdiction must stall
Court orders
#- 1.The Notice of Motion Application dated 5th January 2021 be and is hereby dismissed with costs to the Plaintiff/Respondent
- Jurisdiction invoked
- Environment and Land Court Act; Civil Procedure Act (Cap 21) and Civil Procedure Rules 2010, Order 45
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Parmjit Kaur Alias Mandeep Kaur v Avtar Singh Suri [2022] KEELC 449 (KLR)", Case Analysis (2022). ELC Suit No. 738 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/449/eng@2022-02-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.