Oloololo Game Ranch Limited v Ilekarekeshe Group Trust Registered Trustees & another (Environment & Land Case 15 of 2021) [2024] KEELC 4894 (KLR)
The bottom line
#A Kenyan landowner lost its bid to reopen a 1999 judgment because it had already chosen to appeal that decision decades earlier.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to review a final judgment after an appeal was preferred
The court lacks jurisdiction to entertain an application for review of a final judgment where the aggrieved party elected to appeal to the Court of Appeal
Order 21 provides for pronouncement of judgments, Order 45 for review, and sections 65 and 75 of the Civil Procedure Act for appeals. A party must elect between review and appeal; once an appeal is filed and concluded, the party cannot return to the superior court to seek review, as the election exhausts the option and no provision permits setting aside a final judgment otherwise than by review or appeal.
Legal status of the file
The suit was concluded by the judgment of 20.12.1999, which has not been set aside and remains binding
The parties did not dispute that the proceedings were concluded by the judgment of 20.12.1999. The 2nd Defendant's appeal was withdrawn and the withdrawal was never challenged; hence the judgment and decree remain undisturbed and binding between the parties.
Authority of Kemboy Law Advocates to file the preliminary objection
The firm has full authority to act for the 1st Defendant, and the 1st Defendant was entitled to participate despite the application being against the plaintiff only
The Ruling of 22.03.2023 upheld the change of advocates from Chelanga & Associates to Kemboy Law Advocates for the plaintiff; nothing showed the firm ceasing to act for the 1st Defendant. Further, the 1st Defendant is bound by the 1999 judgment and has a right to be heard under Articles 47 and 50, so filing the preliminary objection was not irregular.
Res judicata as a preliminary objection
The court declined to find the application res judicata because the pleadings of the earlier cross-petition were not placed before it
A preliminary objection on res judicata between two distinct files requires a substantive application attaching the pleadings and determination of the previous file so the court can compare the issues. The applicant did not attach the cross-petition pleadings, so the court could not confirm the similarity of issues.
Legal principles established
#- Where a party elects to file an appeal after a final judgment, that party cannot return to the same court to seek a review of the same judgment; the court loses jurisdiction to entertain such a review
Court orders
#- 1.The preliminary objection dated 30.11.2020 is upheld
- 2.The 2nd Defendant's/Respondent's pending application dated 02.12.2019 is struck out for lack of jurisdiction
- 3.The 2nd Defendant/Respondent shall bear the costs of the preliminary objection dated 30.11.2020
- Jurisdiction invoked
- Article 162(2) of the Constitution; Environment and Land Court Act (determination of a preliminary objection in a suit transferred from the High Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Oloololo Game Ranch Limited v Ilekarekeshe Group Trust Registered Trustees & another (Environment & Land Case 15 of 2021) [2024] KEELC 4894 (KLR)", Case Analysis (2024). Kilgoris ELC Case No. 15 of 2021 (formerly Narok ELC Case No. 29 of 2020 and Nairobi High Court Civil Case No. 3457 of 1995). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4894/eng@2024-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.