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ELCDismissedELC No. 37 of 2020· [2025] KEELC 43 (KLR)

PHYLIS JEROTICH MUTWOL v EMMY JEPKEMOI MUTWOL & 4 others

Environment and Land Court
20 January 2025
FNF. Nyagaka
2,555 words in judgment
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The bottom line

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A Kenyan court dismissed a refiled stay application as res judicata, confirming you cannot fix a rejected application by simply refiling it with minor tweaks.

What this practically means

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Executive summary

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This was a ruling by the Environment and Land Court (F. Nyagaka, J) on an application dated November 19, 2024 in ELC No. 37 of 2020, a land dispute. The applicant plaintiff sought a stay of a ruling delivered on 6th November 2024 (which had dismissed her objection to the production of contentious documents by the 1st defendant) and of further proceedings pending an intended appeal. She filed this application barely an hour after the court, by a ruling delivered on 19/12/2024, had dismissed an identical application dated 19/11/2024 for being flawed and poorly drafted. The 1st and 5th defendants opposed through a replying affidavit, grounds of opposition and a notice of preliminary objection, arguing the application was res judicata, an abuse of process and brought in bad faith, and relied on several authorities. The court framed two issues: whether the application was merited and who should bear costs. It found the second application was word for word identical to the first, purported to be an 'Amended Application' filed without leave and in breach of Order 8 of the Civil Procedure Rules, and could not amend an already-determined application as the court had become functus officio. The application was found to be res judicata under Section 7 of the Civil Procedure Act and an abuse of the court process, consistent with the principles in Muchanga Investments and Ephraim Miano Thamaini. The application was dismissed with costs to the respondents, and the parties were directed to attend a virtual mention on January 23, 2025 for submissions on the main suit and fixing of a judgment date.

Key legal issues

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01

Res judicata / abuse of process

Holding

The application was res judicata and an abuse of the process of the court, being a replica of the application dated 19/11/2024 dismissed by ruling on 19/12/2024, filed an hour later as a 'plug-in' to remedy the defects the court had identified

Reasoning

The facts and grounds of the second application were exactly similar, word for word, to the first. The only changes were three words in prayer 3 and the certificate of urgency. The first application had been heard and finally decided on the merits with the applicant participating. Section 7 of the Civil Procedure Act barred relitigating the same issue, and re-litigation immediately after dismissal without bona fides was an abuse.

p. 4
02

Amendment of a decided application

Holding

The purported 'Amended Application' flouted Order 8 of the Civil Procedure Rules and was ineffective because no pending application existed to amend

Reasoning

The applicant did not seek leave to amend, did not indicate the authority or order under which she amended, and the purportedly amended application had already been determined and dismissed with costs. The court, having become functus officio, could not re-look into it and the applicant could not revive it by purporting to amend it.

p. 3

Legal principles established

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  • A party cannot amend an application that has already been determined; a court that has rendered its decision becomes functus officio and cannot revisit the matter
  • Knowingly moving the court over an issue already determined constitutes abuse of the court process

Court orders

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  1. 1.Application dated November 19, 2024 dismissed with costs to the Respondents
  2. 2.Parties to attend court virtually on January 23, 2025 at 08:30 AM for mention for submissions on the main suit and fixing a date for judgment

Authorities

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Legislation

  • Constitution of KenyaArticles 48, 50(1), 159
  • Civil Procedure Act, Chapter 21, Laws of KenyaSections 1A, 1B, 3A, 3B, 63(e), 7
  • Civil Procedure RulesOrder 42 Rule 6, Order 51 Rule 1, Order 8
  • Court of Appeal Rules, 2022

Cases cited (6)

  • Kennedy Mokua Ongiri v Joshua Nasende Mosioma and Florence Nyamoita Nyasende
    [2022] eKLR
  • Njogu v. Wambugu and another
    Nairobi CCC No. 2340 of 1991
  • Siri Ram Kaura v M.J.E Morgan
    CACA 71 of 1960 (1961) EA 462
  • Uhuru Highway Development v. Central Bank of Kenya and two others
    [1966] eKLR
  • Muchanga Investments Limited vs Safaris Unlimited (Africa) Ltd & 2 Others
    Civil Appeal No. 25 of 2002 (2009) eKLR 229
  • Ephraim Miano Thamaini v Nancy Wanjiru Wangai & 2 Others
    [2022] eKLR
Jurisdiction invoked
Articles 48, 50(1) and 159 of the Constitution of Kenya; Sections 1A, 1B, 3A, 3B and 63(e) of the Civil Procedure Act; Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules

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, "PHYLIS JEROTICH MUTWOL v EMMY JEPKEMOI MUTWOL & 4 others", Case Analysis (2025). ELC No. 37 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/43/eng@2025-01-20

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