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ELCDismissedNot stated in the judgment· [2023] KEELC 911 (KLR)

Acouth & another v Jasch Holdings & another (Environment & Land Case E397 of 2021) [2023] KEELC 911 (KLR)

Environment and Land Court
9 February 2023
JOJudy Omange
884 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a mesne profits claim because the same issue had already been decided, confirming you cannot re-litigate matters twice.

What this practically means

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Executive summary

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The defendants (applicants), through an application dated November 14, 2022 brought under Order 13 rule 1, Order 26 rule 1 and Order 51 rule 1 of the Civil Procedure Rules 2010 and sections 1A, 1B and 3A of the Civil Procedure Act, sought an order that the 1st and 2nd respondents pay, or in the alternative deposit in court as security, mesne profits for the period November 2021 to October 2022, and further that the respondents deposit one year's mesne profits as security pending hearing of the suit, with costs. The application was supported by the affidavit of James Njuguna Ngururi. The plaintiffs opposed, contending that the mesne profits claim arose from a licence agreement being forced on them and that the issues had already been determined in an earlier application dated November 10, 2021, in which the court issued an injunction restraining the defendants from distressing for rent or licence fees. The court framed two issues: whether the matter was res judicata, and whether the defendants were entitled to mesne profits. Relying on Section 6 of the Civil Procedure Act, the court found that the mesne profits issue had been directly and substantially in issue in the earlier application between the same parties litigating under the same title, and had been heard and determined by a competent court, which issued the injunction. The defendants did not comply with directions on filing submissions, and their submissions were not considered. The application was found to have no merit and was dismissed with costs.

Key legal issues

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01

Whether the application for mesne profits is res judicata in light of the ruling on the application dated November 10, 2021

Holding

The application is res judicata because the issue of mesne profits was directly and substantially in issue in the earlier application between the same parties and was determined by a court of competent jurisdiction

Reasoning

The court examined the pleadings in the earlier application, noting that the deponent had stated that the 1st defendant cancelled the transaction and resorted to recovering mesne profits of Kshs 3,410,000. The earlier court, having considered all pleadings and submissions, issued an injunction restraining the defendants from distressing for rent or licence fees. The same issue between the same parties therefore could not be re-litigated under Section 6 of the Civil Procedure Act.

p. 3
02

Whether the defendants are entitled to mesne profits

Holding

The court did not reach the merits, being barred by res judicata from hearing the parties on the same issue

Reasoning

Having found the matter res judicata under Section 6 of the Civil Procedure Act, the court declined to determine entitlement to mesne profits and dismissed the application with costs.

p. 3

Legal principles established

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  • A court is barred from trying an issue that was directly and substantially in issue and heard and finally decided in a former suit between the same parties litigating under the same title before a competent court (Section 6, Civil Procedure Act)

Court orders

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  1. 1.The application dated November 14, 2022 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 13 rule 1
  • Civil Procedure Rules 2010Order 26 rule 1
  • Civil Procedure Rules 2010Order 51 rule 1
  • Civil Procedure Act, cap 21 Laws of KenyaSection 1A
  • Civil Procedure Act, cap 21 Laws of KenyaSection 1B
  • Civil Procedure Act, cap 21 Laws of KenyaSection 3A
  • Civil Procedure Act, cap 21 Laws of KenyaSection 6
Jurisdiction invoked
Order 13 rule 1, Order 26 rule 1, Order 51 rule 1 of the Civil Procedure Rules 2010 and sections 1A, 1B and 3A of the Civil Procedure Act (cap 21)

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, "Acouth & another v Jasch Holdings & another (Environment & Land Case E397 of 2021) [2023] KEELC 911 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/911/eng@2023-02-09

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