Vulpine Investments Limited v Posstone Limited & another (Environment & Land Case E064 of 2021) [2023] KEELC 424 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the application is res judicata
The preliminary objection fails; the application deals with site visit and review, issues not determined in the April 26, 2022 ruling
Applying section 7 of the Civil Procedure Act and the elements of res judicata from Stephen Wanganga Njoroge v Stanley Ngugi Njoroge, the court found the matters now raised - site visit and review - were not directly and substantially in issue or finally decided in the earlier ruling dismissing the injunction application. The objection therefore lacked merit.
Whether the court should conduct a site visit of the suit land
Yes - prayer (iii) allowed; plaintiff to organize dates with the Deputy Registrar
The parties disputed whether the defendants were on the plaintiff's land or on LR No 12610/5. Order 18 rule 11 of the Civil Procedure Rules empowers the court to inspect any property concerning which a question arises. Since the disputed fact of encroachment and quarrying could only be resolved by a site visit, the court allowed the prayer.
Whether the court should review its ruling of April 26, 2022 and grant an injunction
No - the review application was premature and speculative
Section 80 of the Civil Procedure Act and Order 45 rule 1(1) permit review on discovery of new and important matter, error apparent on the face of the record, or other sufficient reason, without unreasonable delay. The plaintiff sought review before the site visit, relying on its anticipated outcome; findings from the site visit could only be viva voce evidence. The threshold was not met.
Legal principles established
#- A preliminary objection on res judicata fails where the issues raised were not determined in the earlier ruling
- The court may at any stage of a suit inspect any property concerning which a question arises
- Findings from a site visit can only be presented as viva voce evidence and cannot found a review
Court orders
#- 1.The notice of preliminary objection dated September 13, 2022 is disallowed as unmerited
- 2.Prayer No (iii) of the notice of motion dated August 20, 2022 is allowed - the plaintiff to organize with the Deputy Registrar suitable dates and time for a site visit of the suit land
- 3.The prayer for review of the ruling and orders of April 26, 2022 and for an injunction is declined
- 4.Costs will be in the cause
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act; procedure governed by the Civil Procedure Act and Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Vulpine Investments Limited v Posstone Limited & another (Environment & Land Case E064 of 2021) [2023] KEELC 424 (KLR)", Case Analysis (2023). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/424/eng@2023-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.