Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment· [2024] KEELC 5771 (KLR)

Komen v Kigen alias Chepunyur (Environment & Land Case 009 of 2023) [2024] KEELC 5771 (KLR)

Environment and Land Court (court not expressly named; delivered at Kabarnet)
25 July 2024
LWL. N. Waithaka
1,216 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

A Kenyan land court refused to reinstate a dismissed suit, ruling that asking the same judge a second time is barred and the proper route was an appeal.

What this practically means

#

Executive summary

#
By notice of motion dated 7th December 2023 the applicant sought to vary, set aside and/or vacate the court's ruling of 23rd October 2023 and to reinstate his suit for hearing. He argued that his previous counsel's oversight, of which he was unaware, led to the dismissal; that he is 74 years old, in poor health and at risk of losing property in Marigat town; and that justice requires his case be heard on its merits, invoking Article 159 of the Constitution and sections 1A, 1B and 3A of the Civil Procedure Act. The respondent opposed, contending the application was an abuse of process, that the court had become functus officio upon delivering the ruling of 23rd October 2023, and that the application was res judicata the applicant's earlier reinstatement application dated 13th July 2023, which the court dismissed on 23rd October 2023. The respondent relied on Uhuru High Way Development v Central Bank of Kenya and Kennedy Mokua Ongiri v John Musyoma & 2 others. The court agreed with the respondent: having determined the earlier application on its merits, the court became functus officio and could revisit that decision only by way of review under section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, following John Gilbert Ouma v Kenya Ferry Services Ltd; the applicant's remedy was an appeal to the Court of Appeal. The fresh application was found res judicata the former, and was dismissed as misconceived and an abuse of process, with costs to the respondent.

Key legal issues

#
01

Functus officio after determining reinstatement application on merits

Holding

Having decided the 13th July 2023 application on its merits on 23rd October 2023, the court could not reconsider the same issue; the applicant's remedy was appeal or review.

Reasoning

The court had already considered and determined whether the applicant had made out a case for reinstatement of his suit. Having done so, its jurisdiction to revisit that determination was confined to review under section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. An aggrieved party's proper course was an appeal to the Court of Appeal, not a fresh application inviting the court to re-open the merits.

p. 3
02

Res judicata

Holding

The application dated 7th December 2023, seeking the same reinstatement orders as the dismissed 13th July 2023 application, is res judicata the former.

Reasoning

The issue the new application invited the court to determine - whether the applicant had made up a case for reinstatement of the suit - was the very issue the court considered and determined when it dismissed the application dated 13th July 2023 on 23rd October 2023. The fresh application was therefore barred by res judicata and, being ill advised, misconceived and an abuse of process, fell to be dismissed with costs.

p. 3

Legal principles established

#
  • A court that has determined a reinstatement application on its merits becomes functus officio and can only revisit its decision through review under section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, or on appeal.

Court orders

#
  1. 1.The notice of motion dated 7th December 2023 is dismissed
  2. 2.Costs of the application awarded to the Respondent

Authorities

#

Legislation

  • Constitution of KenyaArticle 159
  • Civil Procedure Actsections 1A, 1B, 3 and 3A
  • Civil Procedure Actsection 80
  • Civil Procedure RulesOrder 45 Rule 1

Cases cited (3)

  • Uhuru High Way Development v Central Bank of Kenya & 20 others
    Nairobi Civil Appeal No. 36 of 1996
  • Kennedy Mokua Ongiri v John Musyoma & 2 others
    (2022) eKLR
  • John Gilbert Ouma v Kenya Ferry Services Ltd
    (2021) eKLR
Jurisdiction invoked
Inherent jurisdiction under sections 1A, 1B, 3A of the Civil Procedure Act invoked; application governed by section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Komen v Kigen alias Chepunyur (Environment & Land Case 009 of 2023) [2024] KEELC 5771 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5771/eng@2024-07-25

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