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ELCPartially AllowedCivil Appeal No. 96 of 2020· [2024] KEELC 4413 (KLR)

Njeru & another v Nairobi City County (Environment & Land Petition E009 of 2020) [2024] KEELC 4413 (KLR)

Court of Appeal
8 November 2024
1,719 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This judgment of the Court of Appeal (Karanja, Mohammed and Murgor JJA) disposed of a striking-out application dated 28th June 2024 filed by the respondents. The appeal arose from the dismissal of an application dated 23rd August 2023 in which the appellant sought orders against its former advocates, the 1st and 3rd respondents. The dismissal was affirmed on 8th April 2024. The Court of Appeal first found that it had no jurisdiction under Article 159(2)(d) of the Constitution to hear an appeal against its own interlocutory decision, and that Section 3A of the Appellate Jurisdiction Act could not cure that defect. The court then found that the appeal was also a gross abuse of the court's process and res judicata. It held that the doctrine of res judicata, codified at Section 7 of the Civil Procedure Act, precluded re-litigation of causes of action conclusively settled by a competent court. The court struck out the Petition of Appeal under Rule 35(1)(b)(ii) of the Court of Appeal Rules, 2022, and awarded costs to the 1st and 3rd respondents. Murgor JA dissented on several key grounds. She found that the agreements between the parties were valid sub-leases granting the appellants leasehold rights over the suit property, that the rescission of those agreements was unlawful and in breach of contract, and that the demolition of the appellants' structures violated their constitutional right to property under Article 40. She would have allowed the appeal, awarded damages of Kshs.364,969,500 with interests, and directed the 4th respondent to effect a survey and registration of the sub-lease. She also criticised the majority's striking-out of the appeal, holding that the errors of law were substantial and that the appeal raised triable issues warranting full plenary hearing.

Key legal issues

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01

Whether the Court of Appeal lacked jurisdiction under Article 159(2)(d) to hear appeals against its own interlocutory decisions

Holding

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.

Reasoning

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.

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Whether striking out the Petition of Appeal was warranted under Rule 35 of the Court of Appeal Rules, 2022

Holding

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.

Reasoning

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.

03

Whether interlocutory decisions of the Court of Appeal can be subject of a petition of appeal in the same court

Holding

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.

Reasoning

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

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  • 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

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  1. 1.The Petition of Appeal dated 14th May, 2024 be and is hereby struck out
  2. 2.The Appellant be and is hereby condemned to pay costs of the appeal to the 1st and 3rd Respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)
  • Civil Procedure Act, Cap 21Section 7
  • Appellate Jurisdiction Act, Cap 9Sections 3, 3A, 5(2), 6
  • Court of Appeal Rules, 2022Rules 35(1)(b)(ii), 35(1)(c)
  • Repealed Constitution of KenyaSections 75, 78
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

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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, "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.