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ELCDismissed· [2024] KEELC 5813 (KLR)

Kinuthia v Kariuki & 2 others (Environment & Land Case 896 of 2012) [2024] KEELC 5813 (KLR)

Environment and Land Court (High Court-level superior court, judge-delivered ruling)
23 July 2024
4,722 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court dismissed a repeat application because the same issues had already been decided, penalising the defendants with costs.

What this practically means

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Executive summary

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The Defendants/Applicants filed a Notice of motion dated 21st May 2024 seeking leave for the firm of Kwew Advocates LLP to come on record, summons to the process server James Ng'ang'a Mucheke for cross-examination, setting aside of the judgment delivered on 28th July 2022, expungement of pleadings filed by E. M. Wachira & Co. Advocates, and leave to file a defence. The application was brought under Sections 3A and 20 of the Civil Procedure Act and various provisions of the Civil Procedure Rules 2010, supported by the affidavit of the 1st Defendant, Cecilia Wambui Kariuki. The Plaintiff/Respondent opposed, contending the application was res judicata and an abuse of process because the same issues - service, retention of the former advocates, and setting aside the 2022 judgment - had been raised and disposed of in an application dated 17th January 2024, dismissed by ruling delivered on 7th March 2024. The court framed two issues: res judicata and abuse of due process. It held the present application sought substantially the same reliefs as the earlier one and was barred by Section 7 of the Civil Procedure Act, applying the Supreme Court's test in John Florence Maritime Services; cosmetic additions of new reliefs did not evade the doctrine. On abuse, the court found the Applicants were attempting to circumvent the findings of the 7th March 2024 ruling through the backdoor - notably by lodging a fresh complaint against the former advocates at the disciplinary tribunal after that ruling had noted its absence - amounting to gross abuse of due process and an endeavour to have the court sit on appeal over its own decision. The application was dismissed with costs to the Plaintiff/Respondent, assessed and certified at KES 20,000, to be borne by the Applicants/Defendants.

Key legal issues

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01

Whether the application is barred by res judicata

Holding

Yes - the application seeks the same or substantially the same reliefs as the application dated 17th January 2024, which was dismissed on 7th March 2024, and is therefore barred by Section 7 of the Civil Procedure Act.

Reasoning

The court compared the two applications and found the current one seeks identical core reliefs: setting aside the 28th July 2022 judgment and leave to file a defence. The earlier application was heard and determined on the merits of service and retention of counsel. Adding cosmetic reliefs does not evade res judicata, consistent with the five-element test in John Florence Maritime and the vigilance principle in E.T. v Attorney General.

p. 5
02

Whether the application amounts to abuse of the due process of the court

Holding

Yes - the Applicants are attempting to circumvent the findings of the 7th March 2024 ruling through the backdoor, including by belatedly lodging a complaint at the Advocates Disciplinary Tribunal.

Reasoning

The court had previously found service proper and the law firm duly retained, noting no complaint existed at the disciplinary tribunal. The Applicants then lodged such a complaint and sought to revisit the findings. This, and the request to cross-examine the process server, was an endeavour to have the court sit on appeal over its own decision and amounted to gross abuse of due process.

p. 8

Legal principles established

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  • A party who has canvassed a set of issues before a court cannot revert to the same court to re-agitate the same or substantially similar issues; the remedy is appeal.
  • Adding cosmetic or additional reliefs to a subsequent application does not take it outside the doctrine of res judicata.

Court orders

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  1. 1.The application dated 21st May 2024 is dismissed with costs to the Plaintiff/Respondent.
  2. 2.The costs attendant to the application are assessed and certified in the sum of KES 20,000 to be borne by the Applicants/Defendants.

Authorities

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Legislation

  • Civil Procedure ActSections 3A and 20
  • Civil Procedure ActSection 7
  • Civil Procedure Rules 2010Order 5 Rules 6, 7, 15; Order 9 Rules 9 and 10; Order 51 Rule 1
  • Constitution of KenyaArticle 50(1)
  • Advocates ActSections 57, 58 and 59

Cases cited (14)

  • John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others (Petition 17 of 2015)
    [2021] KESC 39 (KLR) (Civ) (6 August 2021)
  • Bernard Mugo Ndegwa v James Nderitu Githae & 2 others
    (2010) eKLR
  • ET v Attorney-General & another
    (2012) eKLR
  • Omondi v National Bank of Kenya Limited and others
    (2001) EA 177
  • Njangu v Wambugu and another Nairobi HCCC No 2340 of 1991
  • Uhuru Highway Developers Limited v Central Bank of Kenya & others
    [1999] eKLR
  • Nicholas Njeru v Attorney General & 8 others
    Civil Appeal 110 of 2011 (2013) eKLR
  • Kenya Commercial Bank Ltd v Benjo Amalgamated Ltd
    [2017] eKLR
  • Henderson v Henderson
    (1843) 67 ER 313
  • Mburu Kinyua v Gachini Tutu
    (1978) KLR 69
  • Satya Bhama Gandhi v Director of Public Prosecutions & 3 others
    [2018] eKLR
  • Rutongot Farm Ltd v Kenya Forest Service & 3 others (Petition 2 of 2016)
    [2018] KESC 27 (KLR) (19 September 2018)
  • Kenya Section of the International Commission of Jurists v Attorney General & 2 Others Criminal Appeal No. 1 of 2012
    [2012] eKLR
  • Muchanga Investments Ltd v Safaris Africa [Unlimited] Ltd
    [2009] eKLR
Jurisdiction invoked
Sections 3A and 20 of the Civil Procedure Act; Order 5 Rules 6, 7, 15 and 15; Order 9 Rules 9 and 10; and Order 51 Rule 1 of the Civil Procedure Rules 2010 (inherent jurisdiction invoked by Applicants)

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, "Kinuthia v Kariuki & 2 others (Environment & Land Case 896 of 2012) [2024] KEELC 5813 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5813/eng@2024-07-23

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