Njoroge v Kanyia (Suing as a trustee of and on behalf of Redeemed Gospel Church)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the stay of execution application was barred by res judicata
Yes - the same stay issue between the same parties had been heard and finally decided in two prior applications
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.
Whether the Court should review, set aside or vary its Ruling of 15th October/November 2021
No - no grounds for review under Section 80 CPA and Order 45 Rule 1(1) were demonstrated
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
#- 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
#- 1.The Notice of Motion dated 3rd October 2022 is dismissed with costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.