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ELCDismissedEnvironment & Land Case 190 of 2015· [2023] KEELC 19935 (KLR)

Komen & 18 others v Lorho Properties Limited & 8 others

Environment and Land Court
21 September 2023
EOE. O. Obaga
1,093 words in judgment
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The bottom line

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The Environment and Land Court refused to reinstate a dismissed land case, warning that arguing a wrong res judicata decision belongs in an appeal, not a review.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Eldoret (E. O. Obaga, J) determined a Notice of motion dated April 28, 2023 in which the Plaintiffs/Applicants sought reinstatement and hearing on merits of their application dated December 14, 2022, which had been dismissed for non-attendance on March 8, 2023. The dismissed application had sought review and setting aside of a ruling of November 3, 2022 by which the Applicants' suit - which sought stay of execution of a decree in Eldoret CMCC No 516 of 2005 and to stop their eviction from LR No Pioneer/Ngeria Block 1 (EATEC) 7081 - was struck out as an abuse of process and res judicata. The Applicants' advocate attributed the non-attendance to technical difficulties logging into the virtual hearing and argued that his mistakes should not be visited on his clients. The 3rd, 4th and 5th Respondents opposed, noting the application came almost two months after the dismissal, was filed on the day fixed for taxation of the party and party bill of costs, and was frivolous and an abuse of process. The court framed a single issue: whether the Applicants had shown a case warranting the exercise of the court's discretion. Holding that the advocate's technical challenges were not the only consideration, the court noted the inordinate delay and found the underlying review application cited no known grounds for review - the res judicata complaint being a ground of appeal, not review - making reinstatement futile. The application was dismissed with costs to the 3rd, 4th and 5th Respondents.

Key legal issues

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01

Whether the dismissal for non-attendance should be set aside and the review application reinstated

Holding

Discretion not exercised in the Applicants' favour because of the delay and the futility of the underlying application

Reasoning

The court accepted the advocate had technical difficulties but noted the Applicants waited almost two months, filing only on the day of taxation of the bill of costs. Even if reinstated, the review application cited no lawful grounds for review, so reinstatement would be futile.

p. 3
02

Whether the application dated December 14, 2022 disclosed grounds for review

Holding

It did not; the only ground advanced was that the struck-out suit was not res judicata, which is appellate material

Reasoning

The court examined the dismissed application and found it sought review of the November 3, 2022 ruling without citing any of the grounds for review known in law, confining itself to disputing the res judicata finding.

p. 3

Legal principles established

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  • A complaint that a suit was wrongly found res judicata is a ground of appeal, not a ground for review
  • Litigation must come to an end

Court orders

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  1. 1.The Notice of motion dated April 28, 2023 seeking reinstatement of the application dated December 14, 2022 is dismissed
  2. 2.Costs of the application awarded to the 3rd, 4th and 5th Respondents
Jurisdiction invoked
Inherent discretion of the Environment and Land Court to reinstate an application dismissed for non-attendance

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, "Komen & 18 others v Lorho Properties Limited & 8 others", Case Analysis (2023). Environment & Land Case 190 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19935/eng@2023-09-21

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