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ELCPartially AllowedEnvironment & Land Case 1391 of 2014· [2023] KEELC 20694 (KLR)

Ndung’u v Mwangi & 7 others; Carnelian Enterprises Auctioneers (Interested Party)

Environment and Land Court
29 September 2023
1,369 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 refused to reopen a land judgment already decided twice, confirming that losing parties must appeal rather than file fresh applications.

What this practically means

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Executive summary

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The 2nd Defendant, Peter Mwangi, through new advocates, applied by notice of motion dated 22nd August 2023 for leave for Prof. Kiama Wangai & Co. Advocates to come on record, a stay of execution commenced by proclamation of attachment dated 16th August 2023, a stay of the judgment of 24th October 2021, and setting aside of the judgment of 24th January 2021. He argued that he occupies Ruiru Kiu Block 2/4546 while the judgment concerned Ruiru Kiu Block 2/4547, that the warrants of attachment were defective as they indicated payment 'to the Defendants' rather than to the Plaintiff, and that he should pay by instalments of Kshs 20,000. The plaintiff opposed, contending the application was res judicata. Omange J framed four issues. Leave to come on record was granted in the interest of justice. The prayer to set aside the judgment failed as res judicata: the same mix-up-of-titles contention had been rejected by Komingoi J on 28th July 2022 in a review application and again by this court on 2nd March 2023, and such concurrent-jurisdiction findings can only be challenged on appeal. Stay of execution was refused because the warrants and proclamation caused no prejudice or confusion. The instalment prayer failed for want of evidence of the applicant's means, and joint and several liability meant the plaintiff could lawfully pursue the 2nd Defendant for the whole decretal amount. The court allowed the firm to come on record and dismissed the setting-aside and stay prayers with costs.

Key legal issues

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01

Whether the application to set aside the judgment was res judicata

Holding

The prayer to set aside the judgment on the ground of mix-up of titles was res judicata, the same issue having been finally determined in earlier review applications.

Reasoning

The applicant again contended he occupies Ruiru Kiu Block 2/4546, not 2/4547. Justice Komingoi had on 28 July 2022 rejected a review on the same contention, and Omange J had on 2 March 2023 rejected a similar prayer. The issue was directly and substantially in issue, between the same parties, under the same title, and finally determined; only an appeal could challenge it.

p. 3
02

Whether defective warrants of attachment justified stay of execution

Holding

Stay refused; the reference to payment 'to the Defendants' in the warrants caused no prejudice or confusion.

Reasoning

The court examined the warrants and proclamation. The warrants correctly named the Defendants as judgment debtors; the citation to the auctioneers indicated judgment debtors were to pay 'to the Defendants'. That misdescription did not prejudice the applicant or cause confusion warranting a stay.

p. 3
03

Whether the 2nd Defendant could pay by instalments

Holding

Refused for want of evidence of means.

Reasoning

The applicant sought to pay Kshs 20,000 in instalments but adduced no evidence of his financial position. Without such information the court could not exercise its discretion in his favour. Joint and several liability also meant the plaintiff could lawfully pursue him for the whole amount.

04

Leave for a new advocate to come on record after judgment

Holding

Granted in the interest of justice.

Reasoning

Judgment had been pronounced but the court held it was in the interest of justice for the 2nd Defendant to be represented by an advocate of his choice, allowing Prof. Kiama Wangai & Co. Advocates to come on record.

Legal principles established

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  • A finding by a court of concurrent jurisdiction, subsequently confirmed on review, can only be challenged on appeal, not by a fresh application in the same court.
  • Where judgment is entered jointly and severally, each judgment debtor is independently liable for the whole decretal amount and the decree-holder may pursue any one of them.

Court orders

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  1. 1.The firm of Prof Kiama is allowed to come on record for the 2nd Defendant.
  2. 2.The prayers to set aside the Judgement and for Stay of Execution are dismissed with costs.

Authorities

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Legislation

  • Civil Procedure ActSection 6
Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court under the Civil Procedure Act (application for leave, stay and setting aside judgment)

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, "Ndung’u v Mwangi & 7 others; Carnelian Enterprises Auctioneers (Interested Party)", Case Analysis (2023). Environment & Land Case 1391 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20694/eng@2023-09-29

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