Njeru & another v Nairobi City County (Environment & Land Petition E009 of 2020) [2024] KEELC 4413 (KLR)
The bottom line
#Kenya's Court of Appeal struck out a petition challenging its own earlier decision, confirming it cannot review its interlocutory rulings and that settled disputes stay settled.
What this practically means
#Executive summary
#Key legal issues
#Whether the Court of Appeal lacked jurisdiction under Article 159(2)(d) to hear appeals against its own interlocutory decisions
Under Article 159(2)(d), the Court of Appeal has no jurisdiction to hear appeals against its own interlocutory decisions unless expressly provided by statute. Section 3A of the Appellate Jurisdiction Act cannot confer that power.
Article 159(2)(d) of the 2010 Constitution limits appeals from the Court of Appeal to the Supreme Court. There is no provision granting the Court of Appeal power to hear appeals against its own interlocutory decisions, and the Supreme Court in LSK v AG affirmed this position. Section 3A of the Appellate Jurisdiction Act cannot be used to confer jurisdiction where the Constitution and statute do not grant it. Only a certificate of certification of appeal is provided for by statute.
Whether striking out the Petition of Appeal was warranted under Rule 35 of the Court of Appeal Rules, 2022
Yes. The Petition of Appeal raised questions already conclusively determined in ELC No. 449 of 2019, was res judicata, and was a gross abuse of the court's process.
Rule 35 empowers the court, on motion or of its own initiative, to strike out an appeal where it is frivolous or a gross abuse of the court's process. The Memorandum of Appeal raised issues of judicial review, spoliation and res judicata already conclusively determined between the same parties in prior proceedings, in breach of Section 7 of the Civil Procedure Act. No new matter was introduced that would bring the dispute within the civil jurisdiction of the Court of Appeal.
Whether interlocutory decisions of the Court of Appeal can be subject of a petition of appeal in the same court
A petition of appeal cannot lie against interlocutory orders of the Court of Appeal; the only known route is a certificate of certification of appeal.
The appeal was a non-starter because it was an interlocutory appeal between the same parties, disguised as a petition. Interlocutory decisions are subject to certification of appeal, not to a petition of appeal. The court was clear that even with a certificate, the issues sought to be raised would still be res judicata and an abuse of the court's process.
Legal principles established
#- A matter is res judicata where the parties, the issue and the subject matter are the same, and the competent court has adjudicated conclusively
- The constitutional petition in ELC No. 449 of 2019 was res judicata, having been adjudicated conclusively
- Where the same subject matter has been conclusively determined, a fresh suit over that subject matter is barred as an abuse of process
Court orders
#- 1.The Petition of Appeal dated 14th May, 2024 be and is hereby struck out
- 2.The Appellant be and is hereby condemned to pay costs of the appeal to the 1st and 3rd Respondents
- On appeal from
- Environment and Land Court
- ELC Petition No. 15 of 2017 (Consolidated with ELCA No. 629 of 2017 and ELCA No. 634 of 2017)
- Jurisdiction invoked
- Article 164 of the Constitution (second appeal as of right on matters of law)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njeru & another v Nairobi City County (Environment & Land Petition E009 of 2020) [2024] KEELC 4413 (KLR)", Case Analysis (2024). Civil Appeal No. 96 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4413/eng@2024-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.