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ELCStruck OutNyamira ELCC No. 97 of 2021 (consolidating Kisii ELCC No. 1143 of 2016, Kisii ELCC No. 58 of 2015, Kisii ELCC No. 59 of 2015)· [2025] KEELC 5224 (KLR)

Gekara v Gekara & 3 others (Environment and Land Case 97 of 2021) [2025] KEELC 5224 (KLR)

Environment and Land Court
14 July 2025
2,081 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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A Kenyan court struck out a land dispute application because it tried to relitigate an issue already decided, confirming that appeals—not repeat applications—are the proper remedy.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nyamira (D. O. Ohungo, J) determined a Notice of Motion dated 5th March 2025 by Zachary Onchwari Gekara, the substituted administrator of the estate of Josephine Kwamboka Gekara, seeking leave to testify as Defendant in three consolidated land suits assigned the global number Nyamira ELCC No. 97 of 2021. The respondents opposed through grounds of opposition, arguing the application was ambiguous, incapable of being granted, and res judicata in light of the court's ruling of 11th December 2024 dismissing a motion to set aside proceedings of 19th June 2024 and re-open the defence case. The court framed two issues: whether the application was res judicata, and whether the orders sought should issue. Examining Section 7 of the Civil Procedure Act, the court held that the doctrine of res judicata ousts jurisdiction and is a complete estoppel. Since the present application sought to revisit the question of taking further evidence, which had already been declined on 11th December 2024, it was res judicata. The proper remedy against that ruling was an appeal, and no Notice of Appeal had been filed. The court emphasised that jurisdiction cannot be conferred by consent or drafting innovation, and a determination made without jurisdiction is a nullity. The application was struck out with costs to the respondents, who were directed to file submissions within the timelines set on 19th June 2024; the court confirmed all tendered evidence is on record.

Key legal issues

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01

Whether the application is res judicata

Holding

The application is res judicata as it seeks to revisit the issue of further evidence, which was the subject of the court's ruling of 11th December 2024 dismissing an application to re-open the defence case

Reasoning

The ruling of 11th December 2024 dismissed a Notice of Motion seeking setting aside of proceedings of 19th June 2024 and re-opening of the defence case. The present application seeks to revisit the same issue of taking further evidence. The matter was heard and determined by a competent court between the same parties; the proper remedy was an appeal, and no Notice of Appeal was filed. The doctrine operates as a complete estoppel and ousts the court's jurisdiction.

p. 4
02

Whether the court can take further evidence despite parties' wishes

Holding

No. Mere consent or good intentions cannot confer jurisdiction on the court

Reasoning

The court restated that jurisdiction is conferred by law, not by consent of parties or ingenuity in drafting. Even where parties applaud and urge the court to act, any determination made without jurisdiction amounts to a nullity. Good intentions to accommodate further evidence cannot create jurisdiction.

p. 4

Legal principles established

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  • Res judicata deprives a court of jurisdiction to hear any matter falling within the doctrine, and is a complete estoppel
  • Jurisdiction cannot be conferred by consent of the parties or by drafting innovation; a determination made without jurisdiction is a nullity

Court orders

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  1. 1.Notice of Motion dated 5th March 2025 struck out with costs to the respondents
  2. 2.Parties to file and serve submissions within the timelines given on 19th June 2024
  3. 3.No need to file an application for transfer of evidence; the Court will locate all tendered evidence on record

Authorities

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Legislation

  • Civil Procedure ActSection 7

Cases cited (3)

  • John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others
    [2015] eKLR
  • Maithene Malindi Enterprises Limited v Kaniki Karisa Kaniki & 2 others
    [2018] eKLR
  • Benson Ambuti Adega & 2 others v Kibos Distillers Limited & 5 others
    [2020] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court); Civil Procedure Act

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, "Gekara v Gekara & 3 others (Environment and Land Case 97 of 2021) [2025] KEELC 5224 (KLR)", Case Analysis (2025). Nyamira ELCC No. 97 of 2021 (consolidating Kisii ELCC No. 1143 of 2016, Kisii ELCC No. 58 of 2015, Kisii ELCC No. 59 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5224/eng@2025-07-14

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