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ELCDismissedNotice of Motion dated 11th December 2024 (in the suit arising from the ruling of 31st May 2023)· [2025] KEELC 695 (KLR)

Njeru Nyaga & Company Advocates LLP v Registered Trustees of Ruiru Sports Club; National Land Commission (Garnishee) (Environment and Land Miscellaneous Application E083 of 2022) [2025] KEELC 695 (KLR)

Environment and Land Court
20 February 2025
3,932 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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What this practically means

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Executive summary

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The Registered Trustees of Ruiru Sports Club (Client/Respondent) moved the Environment and Land Court by Notice of Motion dated 11th December 2024 under Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 42 Rule 6 and Order 50 Rule 2 of the Civil Procedure Rules, seeking a stay of execution of the orders of 2nd November 2023, which had attached monies held by the National Land Commission as Garnishee to satisfy a decree of Kshs. 41,289,401.80 in agreed costs awarded to Njeru Nyaga & Company Advocates LLP by ruling of 31st May 2023. The Club relied on the pendency of Civil Appeal No. E463 of 2023 before the Court of Appeal, a consent order of 13th December 2023 conditional on deposit of the decretal sum in an escrow account, and the eventual deposit of the sum out of time. The Advocate opposed, arguing res judicata (a similar stay application was dismissed on 2nd November 2023), incompetence, and abuse of process. The court framed three issues: res judicata, competence, and whether stay should issue. It held that although the stay of execution sought was distinct from the earlier stay of proceedings application and may not be strictly res judicata, the shuttling between this court and the Court of Appeal was an abuse of process. Applying Justice Oguttu Mboya's ruling of 2nd November 2023, it found it lacked jurisdiction, since invoking the Court of Appeal for stay divests the court below of jurisdiction over a similar application. The application was dismissed with costs to the Advocate/Applicant.

Key legal issues

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01

Res judicata

Holding

The stay orders sought are distinct from the earlier stay of proceedings application, so the application may not be strictly res judicata, but the shuttling between courts is an abuse of process

Reasoning

The court acknowledged the earlier application dated 16th September 2023 sought stay of proceedings, whereas the present one seeks stay of execution. While these orders are distinct and may not attract res judicata, the conduct of litigating the same subject matter in parallel before the ELC and the Court of Appeal amounts to abuse of court process.

p. 7
02

Jurisdiction to grant stay

Holding

Having invoked the Court of Appeal for stay, the respondent cannot revert to the Environment and Land Court; the application is incompetent and an abuse of process

Reasoning

Relying on Justice Oguttu Mboya's earlier ruling of 2nd November 2023, the court held that once the respondent approached the Court of Appeal for stay of execution, the ELC is divested of jurisdiction over a similar application. The respondent must exhaust the jurisdiction of the Court of Appeal before commencing like proceedings elsewhere. The present application was a 'Hail Mary' to tide the respondent over until the Court of Appeal ruling of May 2025.

p. 7

Legal principles established

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  • Once a party invokes the Court of Appeal's jurisdiction for stay orders, the court below is divested of jurisdiction to entertain a similar application
  • The five essential elements of res judicata as set out in Section 7 of the Civil Procedure Act

Court orders

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  1. 1.The Notice of Motion application dated 11th December 2024 seeking stay of execution of the orders of 2nd November 2023 is dismissed
  2. 2.The costs of the application shall be borne by the Client/Respondent

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 63(e), 7
  • Civil Procedure RulesOrder 42 Rule 6, Order 42 Rule 6(1), Order 42 Rule 6(2), Order 50 Rule 2

Cases cited (9)

  • Uhuru Highway Development Limited v Central Bank of Kenya & 2 others
    [1996] eKLR
  • Mohamud Sheikh Hussein v Gulf African Bank Limited
    [2019] eKLR
  • Jospeh Simiyu Mukenya v Agnes Naliaka Cheseto
    [2012] eKLR
  • Tropical Commodities Suppliers & Others v International Credit Bank Limited
    (2004) 2 EA 331
  • Ann Wanjiru Waigwa & Another v Jospeh Kiragu Kibarua
    [2009] eKLR
  • Christopher Ndarathi Murungaru v Kenya Anti-Corruption Commission & Another
    [2006] eKLR
  • Abyssinia Iron & Steel Ltd v Kenya Engineering Workers Union & another
    [2015] eKLR
  • Independent Electoral & Boundaries Commission vs Maina Kiai & 5 Others
    [2017] eKLR
  • Njeru Nyaga & Co Advocates LLP v Registered Trustees of Ruiru Sports Club; National Land Commission (Garnishee)
    [2023] KEELC 21420 (KLR)
Jurisdiction invoked
Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 42 Rule 6 and Order 50 Rule 2 of the Civil Procedure Rules (as invoked by the applicant)

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, "Njeru Nyaga & Company Advocates LLP v Registered Trustees of Ruiru Sports Club; National Land Commission (Garnishee) (Environment and Land Miscellaneous Application E083 of 2022) [2025] KEELC 695 (KLR)", Case Analysis (2025). Notice of Motion dated 11th December 2024 (in the suit arising from the ruling of 31st May 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/695/eng@2025-02-20

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