Kamau v Gatonye & another (Environment & Land Case E516 of 2024) [2025] KEELC 4320 (KLR)
The bottom line
#The Environment and Land Court dismissed a landowner's fresh trespass suit because the same dispute had already been fully decided in a 2019 case.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff's application dated 18/3/25 was res judicata
It was res judicata because a similar motion seeking substantially the same interlocutory relief had been dismissed on 23/1/25, and a dismissal order is a judgment
The court adopted the Court of Appeal's reasoning in Njue Ngai v Ephantus Njiru Ngai (as stated in Peter Ngome v Plantex Company Limited) that a dismissal under the equivalent of Order 17 rule 1 is a judgment. Since the Plaintiff's earlier motion of 9/12/24 seeking similar injunctive orders was dismissed on 23/1/25, the subsequent identical application was barred and was dismissed in its entirety.
Whether the suit dated 9/12/24 was res judicata by virtue of Milimani ELC No. 579 of 2009 (Joseph Gatonye & David Muchiri Gikonyo v Jennifer)
Yes - the parties, subject matter and issues were the same as in ELC 579 of 2009, which was heard and determined by a competent court
The court perused the judgment in ELC 579 of 2009 delivered by Justice Bor on 1/10/2019, which had definitively rejected the 1st Defendant's (now Plaintiff's) claim to Plot B-01, finding the plot ceased to exist after survey into Nairobi Block 133, and dismissed her claim with costs to her against the City Council of Nairobi. The same parties were therefore litigating over the same subject matter already conclusively determined.
Legal principles established
#- A dismissal of a suit or application for non-attendance or want of prosecution amounts to a judgment capable of founding a plea of res judicata
- The elements of res judicata must be satisfied conjunctively, not disjunctively
Court orders
#- 1.The 1st and 2nd Defendants' Notice of Motion dated 20/3/25 is merited and is allowed
- 2.The Plaintiff's Notice of Motion dated the 18/3/25 together with the suit dated the 9/12/2024 are res judicata and are hereby dismissed
- 3.The costs shall be in favour of the 1st and 2nd Defendants
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the suit property; applications determined under the Civil Procedure Act (Section 7) and the Civil Procedure Rules (Order 17 rule 1)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamau v Gatonye & another (Environment & Land Case E516 of 2024) [2025] KEELC 4320 (KLR)", Case Analysis (2025). ELC Suit dated 9/12/2024 (with Notice of Motion dated 18/3/2025 and Defendants' Notice of Motion dated 20/3/2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4320/eng@2025-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.