Nabibia v Tabani; Wamalwa (Applicant); Tabani (Respondent) (Environment & Land Case 336 of 2013) [2023] KEELC 335 (KLR)
The bottom line
#A Busia court struck out a land suit revival application, holding it was barred because the same issues could and should have been raised in an earlier application.
What this practically means
#Executive summary
#Key legal issues
#Whether the application is res judicata under section 7 of the Civil Procedure Act
Yes - the prayers in the Notice of Motion dated May 12, 2022 were directly and substantially in issue in the earlier Notice of Motion dated June 2, 2021 between the same parties, which was heard and finally decided in the ruling of December 8, 2021
Section 7 of the Civil Procedure Act bars a court from trying any matter directly and substantially in issue in a former suit between the same parties that was heard and finally decided. Explanation 4 deems matters which might and ought to have been raised to have been in issue. The applicant had already obtained the Limited Grant by June 2, 2021 and could have sought revival of the abated suit in that application but did not. The prior ruling determined the substitution issue on the merits and dismissed it.
Whether the suit, having abated, could be revived and substitution granted
No - the court declined to revive the abated suit, and without revival there is no basis for extension of time or substitution
The applicant deponed that delay was caused by procuring a chief's letter, but he had already obtained the Limited Grant on May 26, 2021 before filing the June 2, 2021 application, which he annexed to it. No prayer for revival was made then. The court found the applicant's explanation insincere, rejected the revival prayer, and consequently refused extension of time and substitution.
Legal principles established
#- The doctrine of res judicata applies not only to suits but also to applications
- Res judicata extends to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward (Henderson v Henderson)
Court orders
#- 1.The Notice of Motion dated May 12, 2022 is struck out
- 2.No orders as to costs
- Jurisdiction invoked
- Order 24 Rule 7(2) and Order 51(1) of the Civil Procedure Rules; section 7 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nabibia v Tabani; Wamalwa (Applicant); Tabani (Respondent) (Environment & Land Case 336 of 2013) [2023] KEELC 335 (KLR)", Case Analysis (2023). Notice of Motion dated May 12, 2022 (arising from suit concerning land parcel East Bukusu/north Sang'oro/5013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/335/eng@2023-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.