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Case Brief · caselaw.co.ke
ELCDismissedEnvironment and Land Appeal 12 of 2021· [2023] KEELC 20760 (KLR)

Silverspoon Restaurant Limited v Gohl & 2 others

Environment and Land Court
18 October 2023
2,435 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed Silverspoon Restaurant's appeal, confirming a Mombasa magistrate's decision to strike out its land suit as res judicata.

What this practically means

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Executive summary

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Silverspoon Restaurant Limited appealed to the Environment and Land Court at Mombasa against a ruling of Hon. Nabibya PM delivered on 11th February 2021 in Mombasa CMC Land Case No. 51 of 2018, which struck out its plaint as res judicata of a decision in Mombasa CMC No. 1106 of 2013 and disposed of three pending applications. The appellant raised seven grounds, principally that the ruling was delivered secretly in breach of audi alteram partem, that the suit was wrongly found res judicata, and that its grounds of opposition filed on 27th May 2019 were ignored. It sought allowance of the appeal, setting aside of the ruling and decree, and remittal for rehearing before a magistrate other than Hon. Nabibya. S. M. Kibunja J framed four issues: res judicata, secret delivery of the ruling, whether the trial court's orders should be set aside with a retrial ordered, and costs. The court, exercising first appellate jurisdiction by way of retrial, found the grounds of opposition were not on the trial court record so the magistrate could not consider them, and that even if they had been, the outcome would likely have been the same. The ruling was delivered on a date fixed in the presence of counsel, and the appellant's timely appeal showed no prejudice. The application of 20th January 2020 had been withdrawn by notice, and the 7th September 2020 application became a nullity once the suit was struck out. The appeal was dismissed with costs to the respondents in the appeal and the trial court.

Key legal issues

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01

Res judicata under section 7 of the Civil Procedure Act

Holding

The trial magistrate did not err in finding the suit res judicata; the court found no reasonable cause to fault that finding.

Reasoning

The court examined the notice of motion dated 6th May 2019 seeking striking out of the plaint, the grounds of opposition filed on 27th May 2019 but absent from the trial court record, and held the magistrate could not consider what was not before her. Even if the grounds were on file, the outcome would likely have been the same.

02

Alleged secret delivery of the ruling

Holding

The ruling was delivered on a date fixed in the presence of counsel for all parties, and the appellant suffered no prejudice as it filed its appeal in time.

Reasoning

The coram of 10th December 2020 fixed the ruling for 11th February 2021 with all counsel represented. The appellant's timely filing of the memorandum of appeal on 25th February 2021 showed knowledge of the decision, contradicting ground 2 that it did not know the decision.

03

Effect of withdrawal of the application dated 20th January 2020

Holding

The trial court's observation on the notice of withdrawal could not be faulted; the appellant did not disown the notice and must be bound by it.

Reasoning

A notice of withdrawal dated 25th January 2021 and filed on 1st February 2021 was on the record. The appellant did not disown it, so it must have intended to be bound by it and for the court to act on it.

p. 4
04

Effect of striking out the suit on pending applications

Holding

Once the suit was found res judicata and struck out, pending applications founded on its existence, including the conservatory/mandatory injunction application of 7th September 2020, became a nullity.

Reasoning

The application of 7th September 2020 sought preservation of the shop and reinstatement of the plaintiff pending determination of the suit. With the suit struck out, such applications were overtaken by events and null and void.

p. 4

Legal principles established

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  • On a first appeal the court is obliged to reconsider the evidence afresh and draw its own conclusions, while making allowance for not having seen or heard the witnesses.
  • Costs follow the event unless otherwise ordered for good cause under section 27 of the Civil Procedure Act.

Court orders

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  1. 1.The appeal has no merit and is hereby dismissed.
  2. 2.The appellant will meet the costs in the appeal and trial court.

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure ActSection 27

Cases cited (3)

  • Barnabas Biwott versus Thomas Kipkorir Bundotich
    [2018] eKLR

    First appeal is by way of retrial; court must reconsider evidence and draw its own conclusions.

  • Selle & Another versus Associated Motor Boat Co. Ltd
    [1968] EA 123

    Principles on which a first appellate court acts in reassessing evidence.

  • Kivanga Estate Ltd versus National Bank of Kenya Ltd
    [2017] eKLR

    Court's duty to prevent abuse of process and stop litigation brought for ulterior and extraneous considerations.

On appeal from
Chief Magistrate's Court at Mombasa
Mombasa CMC Land Case No. 51 of 2018
Jurisdiction invoked
First appellate jurisdiction over the subordinate court (Environment and Land Court Act; appeal from the Chief Magistrate's Court)

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, "Silverspoon Restaurant Limited v Gohl & 2 others", Case Analysis (2023). Environment and Land Appeal 12 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20760/eng@2023-10-18

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