Kinuthia v Kariuki & 2 others (Environment & Land Case 896 of 2012) [2024] KEELC 5813 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the application is barred by res judicata
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.
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.
Whether the application amounts to abuse of the due process of the court
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.
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.
Legal principles established
#- 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
#- 1.The application dated 21st May 2024 is dismissed with costs to the Plaintiff/Respondent.
- 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.
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.