Kochale & 5 others (Suing on behalf of the residents of Laisamis Constituency and Karare Ward Marsabit County) v Lake Turkana Wind Power Ltd & 4 others; Lesianntam & 5 others (Interested Parties) (Environment & Land Case 163 of 2014) [2023] KEELC 19 (KLR)
The bottom line
#A Kenyan court refused to let Gitson Energy join a concluded wind farm land case, confirming judges cannot reopen final judgments to help parties who never participated.
What this practically means
#Executive summary
#Key legal issues
#Res judicata
The application is not res judicata because the parties in the previous proceedings are not the same and the same-title requirement is unmet.
Section 7 of the Civil Procedure Act requires that the matter was directly and substantially in issue in a former suit between the same parties or parties claiming under them, litigating under the same title, before a competent court. The court found that although some elements were satisfied, not all four conjunctive elements were met, particularly identity of parties and title, so the doctrine did not bar the application.
Sub judice
The application is not sub judice; the pending judicial review and appeal concerned different issues (permits and licences), not the setting apart of land.
Section 6 of the Civil Procedure Act bars trial of a matter directly and substantially in issue in previously instituted proceedings between the same parties. The court compared the reliefs in the judicial review proceedings and found they concerned issuance of permits, licences and inclusion in approved project lists, not setting apart of community land, so the sub judice rule was inapplicable.
Functus officio and jurisdiction
The court became functus officio upon its judgment of 19.10.2021 as to the merits and has no jurisdiction to grant the substantive orders sought by the Applicant.
Applying Telkom Kenya Ltd v John Ochada, the doctrine bars merit-based re-engagement once final judgment is entered and a decree issued, subject only to narrow exceptions (slips, clerical errors, expressing manifest intention). The Applicant was never a party, gave no evidence and sought substantive orders; Silvanus Kizito was distinguished because it concerned stay of execution, not substantive relief.
Abuse of court process
The application is frivolous, vexatious and an abuse of court process as the Applicant sought to relitigate issues finally determined by the Court of Appeal.
The Applicant's land issue had been heard and determined with finality by the High Court and the Court of Appeal, which found the setting apart unlawful and unconstitutional. Having not escalated to the Supreme Court, the Applicant could not salvage its claim before a subordinate court; attempting to benefit from a judgment in which it never filed pleadings or evidence was a second bite at the cherry amounting to abuse of process.
Costs
Costs follow the event under the proviso to section 27 of the Civil Procedure Act; the successful opposing parties are awarded costs of the application.
While costs are discretionary, the general rule is that costs follow the event. The court found no reason to depart from that rule since the Defendants and interested parties successfully opposed the application, and awarded costs accordingly.
Legal principles established
#- A court that has rendered final judgment becomes functus officio as to the merits and cannot revisit the judgment to grant substantive orders to a party who was not before it
- A court does not become functus officio merely by delivering a final decision; it retains powers for stay, review, execution and steps towards closure of the file
- Res judicata under section 7 of the Civil Procedure Act requires all four elements to be satisfied conjunctively, including same parties litigating under the same title
- Abuse of court process includes use of the judicial process for a second bite at the cherry after losing in a superior court
Court orders
#- 1.The Notice of Motion dated 05.05.2022 by Gitson Energy Limited seeking joinder as 6th Interested Party is dismissed in its entirety
- 2.Costs of the application awarded to the 1st, 3rd, 4th & 5th Defendants and the interested parties who opposed the application
- Jurisdiction invoked
- Inherent jurisdiction and Civil Procedure Act (sections 1A, 1B, 3 & 3A) and Civil Procedure Rules 2010 (Order 4 rule 10, Order 51) invoked for the joinder application; jurisdiction contested on res judicata, sub judice and functus officio grounds
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kochale & 5 others (Suing on behalf of the residents of Laisamis Constituency and Karare Ward Marsabit County) v Lake Turkana Wind Power Ltd & 4 others; Lesianntam & 5 others (Interested Parties) (Environment & Land Case 163 of 2014) [2023] KEELC 19 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19/eng@2023-01-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.