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ELCDismissedNot stated in the judgment text provided· [2023] KEELC 119 (KLR)

Siri Gurdawa Ramgarhia Railway, Nairobi Registered Trustees v Hussein & 5 others; Kenya Rural Roads Authority (Interested Party) (Environment & Land Case E163 of 2022) [2023] KEELC 119 (KLR)

Environment and Land Court
19 January 2023
1,624 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court dismissed land defendants' bid to undo an injunction, warning parties cannot relitigate settled issues through repeat applications.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi (E. K. Wabwoto, J) determined two interlocutory matters in an ongoing land dispute over LR No 209/12596, Nairobi: the 1st-3rd Defendants' application dated October 6, 2022 and the Plaintiff's preliminary objection dated October 17, 2022. The Defendants sought variation or setting aside of orders issued on September 27, 2022, which had granted the Plaintiff a temporary injunction, together with reciprocal restraining orders preserving the Defendants' access to parking space on the suit property, and police assistance. The Plaintiff objected that prayers 4, 5 and 6 duplicated prayers 3, 4 and 5 of a previous notice of motion dated July 4, 2022, and were therefore res judicata under Sections 7 and 8 of the Civil Procedure Act. The court framed two issues: whether the preliminary objection was merited, and whether grounds for review had been met. Applying Mukhisa Biscuits and Nitin Properties, the court upheld the preliminary objection in part, finding that prayers 4 and 5 mirrored issues already determined in the September 27, 2022 ruling. On review under Section 80 and Order 45 Rule 1(1), the court found no sufficient cause, observing that the Defendants were attempting to litigate the dispute piecemeal through interlocutory applications, and directed that their issues be canvassed at trial. The application was dismissed with no orders as to costs.

Key legal issues

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01

Whether prayers 4, 5 and 6 of the application dated October 6, 2022 are res judicata

Holding

Yes - they mirror injunctive prayers already determined in the ruling of September 27, 2022, between the same parties over the same subject matter, offending Sections 7 and 8 of the Civil Procedure Act

Reasoning

The court compared the orders of September 27, 2022, which had already issued a temporary injunction restraining the Defendants from interfering with the Plaintiff's possession of the suit property. Prayers 4 and 5 of the fresh application sought reciprocal restraining orders on the same issues, between the same parties and same subject matter. The doctrine's five elements under Section 7 were satisfied, so the preliminary objection succeeded on those prayers.

p. 3
02

Whether the threshold for review under Section 80 and Order 45 Rule 1(1) was met

Holding

No - no sufficient cause, mistake or error apparent on the face of the record was demonstrated

Reasoning

The Defendants alleged an error arising from the Plaintiff's misrepresentation and alleged lack of incorporation under the Trustees (Perpetual Succession) Act, but the court found no sufficient cause presented. The court observed the Defendants were attempting to litigate the dispute through interlocutory applications and directed that their issues be raised at trial.

p. 4

Legal principles established

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  • A preliminary objection must be raised on a pure point of law and cannot be raised where facts must be ascertained or judicial discretion exercised
  • The bar of res judicata requires satisfaction of five essential elements set out in Section 7 of the Civil Procedure Act
  • A party may not relitigate determined interlocutory issues through successive applications

Court orders

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  1. 1.The preliminary objection on prayers 4, 5 and 6 of the application is upheld on grounds of res judicata
  2. 2.The Defendants' application dated October 6, 2022 is dismissed
  3. 3.No orders as to costs
  4. 4.Issues raised by the Defendants to be considered during trial

Authorities

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Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 7
  • Civil Procedure ActSection 8
  • Civil Procedure Act, Chapter 21 Laws of KenyaSection 80
  • Civil Procedure RulesOrder 45 Rule 1(1)
  • Civil Procedure RulesOrder 45 Rule 3(2)
  • Trustees (Perpetual Succession) ActNot specified

Cases cited (2)

  • Mukhisa Biscuits Manufacturing Co. Ltd v West-End Distributors Limited
    (1969) EA 696
  • Nitin Properties Ltd v Singh Kalsi & another
    [1995] eKLR
Jurisdiction invoked
Inherent jurisdiction under the Civil Procedure Act (Sections 1A, 1B, 3A) over interlocutory applications in a civil suit; review under Section 80 and Order 45 Rule 1(1)

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, "Siri Gurdawa Ramgarhia Railway, Nairobi Registered Trustees v Hussein & 5 others; Kenya Rural Roads Authority (Interested Party) (Environment & Land Case E163 of 2022) [2023] KEELC 119 (KLR)", Case Analysis (2023). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/119/eng@2023-01-19

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