Paul Muhoro Muriithi & another v Wanjiku Ndwaru & another (names of 1st respondent inferred from the replying affidavit; full caption not printed in the extract)
The bottom line
#Kenya's Environment and Land Court refused to revive a lapsed land case, ruling the matter was already decided and the applicants' own non-compliance caused the loss.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection is merited
It is merited; the application is res judicata, the court is functus officio, and the objection was upheld with costs
The court applied the Mukhisa Biscuits test and Nitin Properties on pure points of law, then applied Section 7 of the Civil Procedure Act on res judicata. It found the notice of motion sought to revive prayers that had lapsed for non-compliance with prior orders; the issues had already been litigated and determined, so litigation had to come to an end and the court was functus officio.
Whether the application is res judicata
Yes - the issues raised had been previously litigated and determined, and the applicants had failed to comply with earlier orders
A perusal of the notice of motion showed the applicants sought to revive prayers that lapsed when they failed to comply with orders previously granted. The subject matter had been dealt with before, including in Milimani CMCC No 2323 of 2011, and determined by this court, satisfying the Section 7 elements.
Legal principles established
#- A preliminary objection must be raised on a pure point of law, on the assumption that all facts pleaded by the other side are correct
- For res judicata to be upheld, the party raising it must satisfy the five essential elements under Section 7 of the Civil Procedure Act
- A court that has fully performed its functions becomes functus officio and lacks competence to reopen the matter
Court orders
#- 1.The preliminary objection dated October 18, 2022 is upheld with costs payable to the respondents
- 2.The application dated August 26, 2022 is dismissed (the court found it res judicata and held that it could not re-engage with the dispute)
- Jurisdiction invoked
- Not stated; the court determined a preliminary objection raising jurisdiction, functus officio and res judicata under Section 7 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Paul Muhoro Muriithi & another v Wanjiku Ndwaru & another (names of 1st respondent inferred from the replying affidavit; full caption not printed in the extract)", Case Analysis (2023). Not stated in the judgment (the application dated August 26, 2022; a related matter, ELC Misc No 31 of 2020, is referenced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/118/eng@2023-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.