Nyaisu & 2 others v Kilusu & 6 others (Environment and Land Appeal E008 of 2022) [2023] KEELC 724 (KLR)

The court applied Section 7 of the Civil Procedure Act and the five conjunctive elements of res judicata as set out in Invesco Assurance and the Supreme Court's John Florence Maritime decision. It reasoned that an appeal is a legal avenue under Article 50 for a higher court to re-evaluate issues determined in a lower court, whereas res judicata caters for distinct suits filed in different courts with similar competent or lower jurisdictions. The application, being anchored on the Memorandum of Appeal, therefore cannot be barred.

The court adopted the settled principles: substantial loss, absence of unreasonable delay and security. It held that the October 6, 2022 orders merely directed boundary establishment to give clarity to the parties' cause of action, and did not alienate, interfere with or compromise any rights. The applicants did not show how implementation of the boundary exercise, which they themselves had sought in their application dated September 19, 2022, would cause substantive loss. Issues of pecuniary jurisdiction and the mandate of the Land Registrar were matters for the substantive appeal.