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ELCDismissedNot stated in judgment· [2024] KEELC 3614 (KLR)

Njagi v Ngoriadomo (Environment & Land Case 97 of 2011) [2024] KEELC 3614 (KLR)

Environment and Land Court
2 May 2024
FNFred Nyagaka
1,764 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 a second attempt to overturn a 2018 land judgment, ruling the matter was already decided and cannot be re-litigated.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 26/07/2023 brought by the Defendant under Sections 3A and 63(e) of the Civil Procedure Act and Order 10 Rule 11 of the Civil Procedure Rules, seeking to set aside ex parte proceedings and a judgment delivered on 30th October, 2018 in a land suit, together with all consequential orders. The Defendant asserted that his failure to attend the hearing was not deliberate: he had instructed an advocate who kept telling him the matter had not been fixed for hearing; his wife fell ill and died in 2013 and he suffered depression; and he annexed a hospital letter showing he was hospitalized around the time of judgment. He claimed he had lived on the suit property since 1990, had a defence raising triable issues, and had partly complied with the court orders by removing his cattle. The Plaintiff opposed the application as an abuse of process, pointing out that the Defendant had earlier filed an application dated 14/01/2022 for review of the same judgment, which the court refused by a ruling delivered on 31/05/2023, and that the bill of costs had since been taxed by consent. The court framed two issues: whether the application was res judicata, and costs. Applying Section 7 of the Civil Procedure Act and the Court of Appeal decision in Suleiman Said Shabhal v IEBC, the court held that the instant application sought the same relief as the earlier, unsuccessful review application, and that the new grounds - illness, his wife's death and being misled by counsel - were all within the Defendant's knowledge when he filed the earlier application, making them after-thoughts. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the application to set aside the ex parte judgment was res judicata

Holding

The application was res judicata as it sought the same substantive relief (setting aside the same judgment) as an earlier review application that was determined on 31/05/2023, and the new grounds (illness, wife's death, being misled by counsel) were all within the applicant's knowledge when he filed the earlier application

Reasoning

The court applied Section 7 of the Civil Procedure Act and set out five elements of res judicata: prior determination, same issue, competent court, determination on merits, and same parties litigating under the same title. The earlier review application was between the same parties over the same judgment and was denied. The newly-raised facts existed before that application; invoking them now were after-thoughts and conjecture.

p. 4

Legal principles established

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  • A party who unsuccessfully sought to set aside a judgment in an earlier application cannot re-litigate the same relief on facts that were within his knowledge at the time of the earlier application; such a subsequent application is res judicata

Court orders

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  1. 1.The Notice of Motion dated 26/07/2023 is dismissed
  2. 2.Costs of the Application to the Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 63(e)
  • Civil Procedure ActSection 7
  • Civil Procedure RulesOrder 10 Rule 11
  • Civil Procedure Rules, 2010Order 45

Cases cited (1)

  • Suleiman Said Shabhal v Independent Electoral & Boundaries Commission & 3 Others
    [2014] eKLR
Jurisdiction invoked
Sections 3A and 63(e) of the Civil Procedure Act, Order 10 Rule 11 of the Civil Procedure Rules

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, "Njagi v Ngoriadomo (Environment & Land Case 97 of 2011) [2024] KEELC 3614 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3614/eng@2024-05-02

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