Elephant Oil Mills Limited v Njoroge & 5 others (Environment & Land Case 101 of 2021) [2024] KEELC 1379 (KLR)
The bottom line
#A Kwale landowner's late attempt to undo a 2022 consent judgment failed because she was discharged from the case earlier and never appealed.
What this practically means
#Executive summary
#Key legal issues
#Res judicata and jurisdiction to review the consent order
The application dated 4/10/2023 was res judicata; the gist of it was revival of the struck-out Defence and Counterclaim, and the court could not sit on appeal over Yano J's ruling of 20/5/2021 which was never appealed
The court traced its own directions of 14/12/2021 and Yano J's ruling striking out the amended Defence and Counterclaim with finality. The 3rd Defendant ought to have appealed but did not. The consent judgment of 9/3/2022 flowed from that unappealed ruling, which remains a valid order. The issues raised had already been litigated and determined by a court of competent jurisdiction, so the court's hands were tied.
Locus standi of the 3rd Defendant to apply for review
Having been discharged from the proceedings before the consent was recorded, the 3rd Defendant had no standing to complain that she did not participate in the consent
The 3rd and 4th Defendants were discharged from the proceedings by the directions of 14/12/2021 by dint of Yano J's ruling. As a result of the striking out of their Defence and Counterclaim there was no basis for their involvement in recording the consent, and the 3rd Defendant could not contend she was not informed of it.
Delay in bringing the review application
The delay of one year and seven months was inexcusable; a litigant cannot stay mum while leaving responsibility to their lawyers
The application was brought one year and seven months after the consent and decree. Relying on Rukenya Buuri v Marimi Minyora and Nilan v Patel, the court held that a litigant must diligently follow up their case through their advocate, and that an indolent party must reckon with the consequences of inaction. The Applicant's claim of ignorance of the hearing notice was uncorroborated and undated.
Functus officio
Having adopted the consent judgment, the court was functus officio and lacked jurisdiction to entertain the application for review
The court adopted the consent of 9/3/2022 as its judgment and issued a decree on 30/5/2022. Citing Black's Law Dictionary and the Supreme Court's adoption of Pretorius in Raila Odinga v IEBC, the doctrine of finality prevents the decision-maker from revoking or varying a decision once given, absent a right of appeal.
The application for interlocutory injunction dated 24/11/2023
It was dismissed on the same grounds, without separate analysis, since the court was not seized of jurisdiction
The court found it unnecessary to delve into the second application, holding that even assuming it was properly seized of the matter it would apply the same reasoning. The application was founded on the same contention that the Applicant was locked out of the consent and faced eviction, which failed for the reasons already given.
Legal principles established
#- A person vested with adjudicative powers may exercise those powers only once in relation to the same matter; once a decision is given it is final and conclusive and cannot be revoked or varied by the decision-maker (functus officio)
- A litigant must be diligent in following up how their case is being handled by their advocate; an indolent party must reckon with the consequences of inaction
- Where a party's pleadings have been struck out and the party discharged from proceedings, that party has no locus standi and cannot claim to be bound to participate in a subsequent consent judgment
Court orders
#- 1.The application dated 4/10/2023 is dismissed
- 2.The application dated 24/11/2023 is dismissed
- 3.Costs of both applications to the Plaintiff
- Jurisdiction invoked
- Article 159 of the Constitution, Sections 3A and 63 of the Civil Procedure Act, Order 45 and Order 51 Rules 3, 5 and 15 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Muna (Suing as the Legal Representative of the Late - Ann Wambui Muna) & 5 others v Boscardin & 5 others (Environment and Land Case 27 of 2020) [2026] KEELC 160 (KLR)[2026] KEELC 160 (KLR)21 Jan 2026
- Musau v World Vision Kenya (Cause E049 of 2023) [2025] KEELRC 295 (KLR)[2025] KEELRC 295 (KLR)5 Feb 2025
- Musau v World Vision Kenya (Cause E049 of 2023) [2025] KEELRC 295 (KLR)[2025] KEELRC 295 (KLR)5 Feb 2025
Cite this brief
#Cite this brief
Caselaw, "Elephant Oil Mills Limited v Njoroge & 5 others (Environment & Land Case 101 of 2021) [2024] KEELC 1379 (KLR)", Case Analysis (2024). ELC Case (Kwale) – suit No. Kwale/Galu Kinondo/351 proceedings; applications dated 4/10/2023 and 24/11/2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1379/eng@2024-03-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.