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ELCStruck OutELC Mombasa (Chamber Summons dated 29th October 2024 & Notice of Motion dated 19th December 2024)· [2025] KEELC 4893 (KLR)

Said v Juja Coffee Exporters Limited & another (Environment & Land Case 68 of 2022) [2025] KEELC 4893 (KLR)

Environment and Land Court
2 July 2025
SKS. M. Kibunja
1,368 words in judgment
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The bottom line

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Kenya's Environment and Land Court struck out a property suit because its issues had already been decided in an earlier case between the same parties.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (S. M. Kibunja J) determined two interlocutory applications in a suit commenced by plaint dated 23rd June 2022. The plaintiff sought leave to substitute Fatma Tahir Sheikh Said as a witness in place of herself, pleading she was seriously indisposed with throat cancer, or alternatively that her witness statement be admitted without her testifying. The 2nd defendant opposed, contending the application offended sections 33 and 35 of the Evidence Act and was res judicata, and itself filed a notice of motion seeking the striking out of the plaintiff's suit as res judicata and a stay of proceedings pending Mombasa Civil Appeal No. E185 of 2024. The court framed four issues: res judicata and sub judice, merit, orders, and costs. Recalling its own ruling of 1st March 2023, which held that an injunction application was res judicata of HCCC No. 57 of 2016, and noting that HCCC No. 57 of 2016 was dismissed on 17th June 2023, the court held the issues in the present suit were res judicata and that the suit was for striking out. The plaintiff's chamber summons and the stay prayer fell by the wayside. The court ordered the plaintiff's suit struck out with costs to the 2nd defendant, applying section 27 of the Civil Procedure Act that costs follow the event.

Key legal issues

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01

Whether the plaintiff's suit is res judicata following dismissal of HCCC No. 57 of 2016

Holding

The suit is res judicata and struck out

Reasoning

The court noted its ruling of 1st March 2023 had found an injunction application res judicata of HCCC No. 57 of 2016. Since HCCC No. 57 of 2016 was dismissed on 17th June 2023, the issues in the present suit became res judicata of that concluded suit, warranting striking out.

02

Whether the plaintiff's application for witness substitution and affidavit evidence had merit

Holding

The application fell by the wayside once the suit was struck out

Reasoning

The court reasoned that once it found merit in the striking-out prayer, the suit was at an end, so the plaintiff's interlocutory application and the stay prayer required no determination.

Legal principles established

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  • Where issues in a suit were determined or could have been determined in a previously concluded suit between the same parties, the suit is res judicata and liable to be struck out
  • Costs follow the event under section 27 of the Civil Procedure Act unless otherwise ordered on good reasons

Court orders

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  1. 1.The 2nd defendant's application dated 19th December 2024 for striking out the suit for being res judicata has merit
  2. 2.The plaintiff's suit commenced through the plaint dated 23rd June 2022, is hereby struck out with costs

Authorities

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Legislation

  • Civil Procedure Actsection 7
  • Civil Procedure Actsection 6
  • Civil Procedure Actsection 27
  • Evidence Actsection 33(a-h)
  • Evidence Actsection 35

Cases cited (2)

  • Juja Coffee Exporters Limited & 3 Others v Bank of Africa Kenya Limited & Another
    Mombasa HCC 57 of 2016
  • Bank of Africa Kenya Limited v Juja Coffee Exporters Limited & 7 Others
    Mombasa Civil Appeal No. E185 of 2024
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court

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, "Said v Juja Coffee Exporters Limited & another (Environment & Land Case 68 of 2022) [2025] KEELC 4893 (KLR)", Case Analysis (2025). ELC Mombasa (Chamber Summons dated 29th October 2024 & Notice of Motion dated 19th December 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4893/eng@2025-07-02

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