Athman & 3 others v Art 680 Limited & 2 others (Environment and Land Case Civil Suit E021 of 2023) [2024] KEELC 217 (KLR)

Section 7 of the Civil Procedure Act and the John Florence Maritime test require a former final judgment on the merits between identical parties on identical subject matter and cause of action. The High Court in the judicial review proceedings granted certiorari and prohibition solely on the ground that the Land Disputes Tribunal lacked jurisdiction over title to land; it never pronounced on ownership. Judicial review is concerned with the decision-making process, not the merits, so the dispute as to ownership remains unresolved and the present suit is not barred.

Applying the Giella v Cassman Brown and American Cyanamid principles as restated in Nguruman Limited v Jan Bonde Nielsen, the Plaintiffs failed to demonstrate occupation or proof of the construction of the wall, and the 1st Defendant, though showing a sale agreement, did not produce a transfer document. The court adopted the KALPA and Baobab Beach Resort authorities on status quo orders, holding that such preservation orders do not depend on proof of a prima facie case and are appropriate to protect the substratum of the dispute pending full hearing.