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ELCDismissedNot stated in the judgment (notice of motion dated 29th November 2021)· [2022] KEELC 1070 (KLR)

Desderio Nkonge Kirugu v Land Adjudication Officer Mariani Adjudication Section; Benson Nchunge Kujoga (Interested party) [2022] KEELC 1070 (KLR)

Environment and Land Court
2 March 2022
2,471 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Chuka dismissed a landowner's fresh attempt to compel an adjudication officer to alter records, ruling the same issue had already been decided in 2018.

What this practically means

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Executive summary

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This was a notice of motion dated 29th November 2021 brought by Desiderio Nkonge Kirigu under Sections 1A, 1B and 3A of the Civil Procedure Act, seeking an order compelling the Mariani Adjudication Officer to alter the adjudication records and return land plot number 160 Mariani Adjudication Section, together with costs. The applicant deponed that he had obtained judgments and rulings in his favour, including a judgment delivered on 14th May 2018 and the dismissal of ELC Judicial Review No. 5 of 2019, yet the respondent had disregarded court orders by transferring the suit property to third parties despite an order of 28th March 2007. The respondent and interested party were duly served but did not appear at the inter partes hearing on 21st February 2022. The court framed two issues: whether the application was res judicata and whether the applicant was entitled to the prayers sought. Tracing the litigation history from Nairobi High Court Miscellaneous Application No. 306 of 2007 through Chuka Judicial Review No. 04 of 2017, the court noted that the 14th May 2018 judgment by P. M. Njoroge J granted certiorari but expressly refused mandamus and prohibition. Since the present application sought precisely the mandamus relief already rejected, the court held the application was res judicata and an abuse of process. Relying on section 7 of the Civil Procedure Act and authorities including Henderson v Henderson, the IEBC v Maina Kiai case and John Florence Maritime Services, the court dismissed the application with costs.

Key legal issues

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01

Whether the notice of motion dated 29th November 2021 is res judicata

Holding

The application is res judicata and an abuse of the court process

Reasoning

The order sought (compelling the adjudication officer to alter records and return plot No. 160) is identical to the order of mandamus rejected in the judgment of 14th May 2018 in Chuka Judicial Review No. 04 of 2017. The subject matter and parties are the same, the former suit was determined by a competent court, and the applicant is attempting to re-litigate a concluded matter. The doctrine bars issues that ought to have been raised earlier.

p. 4
02

Whether the applicant is entitled to the prayers sought

Holding

The applicant is not entitled to the prayers since the matter was conclusively determined on 14th May 2018

Reasoning

The 2018 judgment issued certiorari quashing the objection decision but declined mandamus and prohibition. Seeking the same mandamus relief anew in a different application cannot circumvent that determination. Litigation must come to an end and a party who has had his day in court cannot re-litigate the same issues against the same opponent.

p. 4

Legal principles established

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  • All elements of res judicata under section 7 of the Civil Procedure Act must be satisfied conjunctively before the doctrine is invoked
  • Parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit
  • Res judicata extends to points which properly belonged to the subject of litigation and which parties exercising reasonable diligence might have brought forward

Court orders

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  1. 1.Applicant's application dated 29th November 2021 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure ActSection 7

Cases cited (7)

  • Independent Electoral & Boundaries Commission vs Maina Kiai & 5 Others
    [2017] eKLR
  • Henderson vs Henderson
    (1843) 67 ER 313
  • Attorney General & another ET
    (2012) eKLR
  • Omondi s NBK & Others
    (2001) EA 177
  • Njanju vs Wambugu and another Nairobi HCC No. 2340 of 1991
  • John Florence Maritime Services Limited & Another vs Cabinet Secretary for Transport and Infrastructure & 3 Others
    [2015] eKLR
  • E.T.V –V- Attorney General & Another
    (2012) eKLR
Jurisdiction invoked
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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Cite this brief

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Cite this brief

Caselaw, "Desderio Nkonge Kirugu v Land Adjudication Officer Mariani Adjudication Section; Benson Nchunge Kujoga (Interested party) [2022] KEELC 1070 (KLR)", Case Analysis (2022). Not stated in the judgment (notice of motion dated 29th November 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1070/eng@2022-03-02

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