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ELCStruck OutELC Mombasa (unnumbered in judgment)· [2024] KEELC 6201 (KLR)

Olang v Njeru & 13 others (Environment & Land Case 52 of 2019) [2024] KEELC 6201 (KLR)

Environment and Land Court
25 September 2024
SKS.M. Kibunja
1,414 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a repeat application for more time to file a defence, ruling you cannot ask for the same thing twice.

What this practically means

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Executive summary

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The defendants, through a notice of motion dated 20th February 2024, sought enlargement of time to comply with the court's orders of 6th December 2023 and leave to enter appearance and file their statement of defence within 14 days. They explained their non-compliance by the time taken to raise the advocate's instruction fees and to conduct investigations at the lands registry and other government offices during the December holidays, and asserted they had a tenable defence and counterclaim. The plaintiff opposed, contending that a similar application had already been adjudicated upon, that the defendants had appointed advocates as early as 2019 and again in August 2023, that an exparte judgment had already been set aside and a second chance given, and that the application was therefore res judicata and an abuse of process. The court framed three issues: res judicata, the extension-of-time threshold, and costs. Relying on section 7 of the Civil Procedure Act and Henderson v Henderson, the court found that the same prayers had been sought orally and declined on 12th February 2024, when the defence and counterclaim were struck out for being filed out of time. Re-seeking them was a second bite at the cherry amounting to abuse of the court process. The extension-of-time question was not addressed. The application was declared res judicata, struck out, with costs awarded to the plaintiff, the defendants having shown no good reason to depart from the rule that costs follow the event under section 27.

Key legal issues

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01

Whether the notice of motion dated 20th February 2024 is res judicata

Holding

It is res judicata because the same reliefs were sought orally and declined on 12th February 2024

Reasoning

The court found that a defence and counterclaim had already been filed, albeit out of time, and that the identical application for extension of time and leave to file defence was made orally on 12th February 2024 and declined, with the defence and counterclaim struck out. Seeking the same prayers afresh was a second bite at the cherry and an abuse of process.

p. 4
02

Whether the threshold for extension of time was met

Holding

Not determined, being rendered moot by the res judicata finding

Reasoning

Having found the application res judicata, which finding effectively determined it, the court held there was no need to consider whether the defendants met the threshold for extension of time to comply with the orders of 6th December 2023.

p. 4
03

Costs

Holding

Defendants to pay costs as costs follow the event

Reasoning

Section 27 of the Civil Procedure Act provides that costs follow the event unless there is good reason to depart. The court found no reasonable cause to depart and ordered the defendants to pay the costs.

p. 4

Legal principles established

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  • Res judicata under section 7 of the Civil Procedure Act bars re-litigation of matters directly and substantially in issue in a former suit between the same parties that was heard and finally decided
  • Costs follow the event unless there is good reason to depart from that rule

Court orders

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  1. 1.That the notice of motion application dated 20th February 2024 is res judicata
  2. 2.The said application is therefore struck out
  3. 3.Costs to be borne by the defendants

Authorities

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Legislation

  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 7
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 27

Cases cited (1)

  • Henderson v Henderson
    (1843-60) All ER 378
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit land matter

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, "Olang v Njeru & 13 others (Environment & Land Case 52 of 2019) [2024] KEELC 6201 (KLR)", Case Analysis (2024). ELC Mombasa (unnumbered in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6201/eng@2024-09-25

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