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ELCDismissedEnvironment and Land Appeal E001 of 2021· [2023] KEELC 17310 (KLR)

Njoroge v Kanyia (Suing as a trustee of and on behalf of Redeemed Gospel Church)

Environment and Land Court
8 May 2023
1,785 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court at Machakos (Ochieng, J) on the Appellant's Notice of Motion dated 3rd October 2022 in an appeal against the judgment of the Kangundo Senior Principal Magistrate's Court in CMCC No. 204 of 2018 delivered on 17th November 2020. The Appellant sought a stay of execution of the lower court judgment and decree pending appeal, and review, setting aside or variation of the Court's own Ruling of 15th October 2021 (misdated in the application as 15th November 2021), alleging imminent eviction on 3rd October 2022 without an eviction notice. The Respondent opposed, showing the Appellant had already sought stay twice: in an application dated 4th December 2020 decided on 16th February 2021, and in an application dated 26th February 2021 dismissed by this Court's Ruling of 15th October 2021 for failure to prove substantial loss; execution had since proceeded and the Appellant evicted. The Court framed two issues. On stay, applying Section 7 of the Civil Procedure Act and the Uhuru Highway Development Ltd test, it held the application res judicata, the identical issue having been finally determined between the same parties litigating under the same title; the proper remedy was appeal, not a fresh application. On review, applying Section 80 of the Act and Order 45 Rule 1(1) of the Rules, it held the Appellant had demonstrated no statutory ground for review. The Notice of Motion was dismissed with costs on 8th May 2023.

Key legal issues

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01

Whether the stay of execution application was barred by res judicata

Holding

Yes - the same stay issue between the same parties had been heard and finally decided in two prior applications

Reasoning

The Appellant had previously sought stay in the trial court (application dated 4th December 2020, ruled on 16th February 2021) and in this Court (application dated 26th February 2021, dismissed by ruling of 15th October 2021). Applying Section 7 of the Civil Procedure Act and the Uhuru Highway test, the matter was directly and substantially in issue, parties and title identical, and the issues finally decided. A dissatisfied litigant should appeal, not file a fresh application.

02

Whether the Court should review, set aside or vary its Ruling of 15th October/November 2021

Holding

No - no grounds for review under Section 80 CPA and Order 45 Rule 1(1) were demonstrated

Reasoning

Section 80 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. The Court noted the Appellant cited the wrong date for the Ruling (15th November instead of 15th October 2021) and failed to demonstrate any statutory ground for review in the application or supporting affidavit.

Legal principles established

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  • A fresh application on an issue already directly and substantially in issue between the same parties, litigating under the same title, and finally decided, is barred by res judicata
  • Elements of res judicata: a previous suit in which the matter was in issue, same parties or parties litigating under the same title, and a competent court having heard and finally decided the issue
  • An applicant for review must demonstrate the statutory grounds: discovery of new and important matter, mistake or error apparent on the face of the record, or other sufficient reason

Court orders

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  1. 1.The Notice of Motion dated 3rd October 2022 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45 Rule 1(1)

Cases cited (1)

  • Uhuru Highway Development Ltd V Central Bank & Others
    CA No. 36 of 1996

    Elements of res judicata: previous suit, same parties or litigating under same title, competent court having heard and decided the issue

On appeal from
Kangundo Senior Principal Magistrate's Court
Kangundo CMCC No. 204 of 2018
Jurisdiction invoked
Appellate/stay jurisdiction of the Environment and Land Court over appeals from subordinate courts; Civil Procedure Act and Civil Procedure Rules

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, "Njoroge v Kanyia (Suing as a trustee of and on behalf of Redeemed Gospel Church)", Case Analysis (2023). Environment and Land Appeal E001 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17310/eng@2023-05-08

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