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ELCStruck OutEnvironment & Land Case 317 of 2015· [2023] KEELC 16622 (KLR)

Shiroya (Substituted with Ronald Om'mira Shiroya) v Khatete (Substituted with Samuel Khatete Omukulu) & 3 others

Environment and Land Court
28 March 2023
DOD. O. Ohungo
1,555 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a repeat land injunction application, ruling that re-filing the same request with minor changes is barred by res judicata.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kakamega (Ohungo J) determined a Notice of Motion dated December 29, 2022 in which the substituted plaintiff sought an interlocutory injunction restraining the first and second defendants from entering, occupying, fencing or interfering with his use and occupation of parcel Marama/Shianda/817 pending trial. The plaintiff deposed that his late father occupied the land, that a 2017 ruling had found occupation, and that the defendants had forcibly begun fencing the property in December 2022. The second defendant's replying affidavit denied the plaintiff's occupation, asserting she had cultivated the land, built a kiosk and pit latrine, and fenced it after noticing suspicious individuals surveying it. The third and fourth defendants did not participate. The court raised the question of jurisdiction suo motu, applying the Owners of the Motor Vessel 'Lillian S' line of authority, and held that the application was barred by res judicata under Section 7 of the Civil Procedure Act: the identical injunction issue had been raised in the plaintiff's application dated December 22, 2015 and determined by Matheka J in a ruling delivered April 11, 2017, between the same parties litigating under the same title. The alleged change of circumstances was dismissed as a cosmetic facelift; the proper remedy was appeal. In the alternative, the court held it would not in any event have granted the injunction, given the plaintiff's failure to prosecute a suit filed nearly ten years earlier despite Order 11 directions. The application was struck out with costs to the first and second defendants.

Key legal issues

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01

Whether the Notice of Motion dated December 29, 2022 was barred by res judicata

Holding

The application was res judicata because the issue of an injunction against the defendants over the same suit property had been raised and determined in the ruling of April 11, 2017 between the same parties litigating under the same title

Reasoning

The court applied Section 7 of the Civil Procedure Act and the elements in John Florence Maritime Services. The plaintiff's 2015 application sought the same injunction and was determined by Matheka J on April 11, 2017. The alleged new facts - the defendants fencing the land in December 2022 - were a cosmetic change that could not revive the claim; the remedy was appeal.

p. 3
02

Whether the court would in any event have granted the interlocutory injunction

Holding

No - the discretion would not have been exercised in the plaintiff's favour given the delay in prosecuting the suit filed nearly ten years earlier

Reasoning

The court noted the suit was filed almost ten years ago with no hearing having taken off. Instead of complying with Order 11 directions and fixing the suit for hearing as ordered on September 26, 2022, the plaintiff filed the present application. Granting an interlocutory injunction at that point was hardly the right exercise of discretion.

p. 3

Legal principles established

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  • Jurisdiction must be satisfied by the court suo motu even where parties do not raise it
  • A fresh interlocutory application seeking the same injunction already determined is barred by res judicata notwithstanding minor changes of circumstances
  • A party aggrieved by an interlocutory ruling should appeal rather than file fresh applications on slight changes of circumstances

Court orders

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  1. 1.Notice of Motion dated December 29, 2022 struck out for being res judicata
  2. 2.Costs to the first and second defendants
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to use and occupation of land

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, "Shiroya (Substituted with Ronald Om'mira Shiroya) v Khatete (Substituted with Samuel Khatete Omukulu) & 3 others", Case Analysis (2023). Environment & Land Case 317 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16622/eng@2023-03-28

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