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ELCDismissedNot stated in judgment (Notice of Motion dated 3rd January 2025 in pending suit)· [2025] KEELC 3074 (KLR)

Gori Investment Limited v Apostolic Faith Church & another (Environment & Land Case E004 of 2022) [2025] KEELC 3074 (KLR)

Environment and Land Court
2 April 2025
ANA. Nyukuri
1,655 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kakamega dismissed a bid to reopen a land case, ruling the same issue had already been decided and could not be raised again.

What this practically means

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Executive summary

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The plaintiff moved the court by Notice of Motion dated 3rd January 2025 seeking leave to reopen its case and recall PW1 to produce documents that had been marked but never produced during his testimony, attributing the omission to an oversight of its advocate. The 1st defendant opposed through a replying affidavit of James Macharia Gitu, contending that the application was an abuse of process and res judicata, a similar application dated 6th March 2023 having already been litigated; that both parties' cases had closed by 24th September 2024 and submissions had been filed. The court framed two issues: whether the application was res judicata and whether good cause existed to reopen the plaintiff's case. Relying on section 7 of the Civil Procedure Act, the IEBC v Maina Kiai decision of the Court of Appeal, and the Henderson v Henderson principle as approved by the Supreme Court in John Florence Maritime Services, the court perused its own ruling of 17th October 2023 on the earlier application, in which it had declined to reopen the plaintiff's case but instead reopened DW1's evidence in chief to produce the parcel file contents. The court held that the question of reopening the plaintiff's case had been determined on merit with finality and that the plaintiff could not evade res judicata merely because the present application sought to recall PW1 rather than the Land Registrar. The application dated 3rd January 2025 was dismissed with costs to the 1st defendant.

Key legal issues

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01

Whether the application dated 3rd January 2025 was barred by res judicata

Holding

Yes. The question of reopening the plaintiff's case had been raised in the application dated 6th March 2023 and determined on merit with finality in the ruling of 17th October 2023, which had not been stayed, reviewed or set aside.

Reasoning

The court traced the elements of res judicata under section 7 of the Civil Procedure Act and applied the Henderson v Henderson principle approved by the Supreme Court in John Florence Maritime. The earlier ruling had squarely dealt with reopening the plaintiff's case and instead reopened DW1's evidence in chief. The plaintiff's failure, through mistake or inadvertence, to include the prayer for recalling PW1 in the former application could not allow a fresh application on the same subject.

p. 4

Legal principles established

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  • A party cannot evade res judicata by re-litigating a matter determined with finality, merely varying the relief sought; matters which with reasonable diligence ought to have been raised in the former application are caught by section 7 of the Civil Procedure Act

Court orders

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  1. 1.The Notice of Motion dated 3rd January 2025 is dismissed
  2. 2.Costs of the application to the 1st defendant
Jurisdiction invoked
Original civil jurisdiction; application under court's inherent discretion in an interlocutory matter (Civil Procedure Act, section 7 invoked on res judicata)

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, "Gori Investment Limited v Apostolic Faith Church & another (Environment & Land Case E004 of 2022) [2025] KEELC 3074 (KLR)", Case Analysis (2025). Not stated in judgment (Notice of Motion dated 3rd January 2025 in pending suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3074/eng@2025-04-02

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