Githu v Kenya Com Rabbit Consortium Limited (Environment and Land Appeal E050 of 2022) [2025] KEELC 5271 (KLR)
The bottom line
#The Environment and Land Court in Thika refused to pause enforcement of a Kshs 3.97 million judgment because the applicant had already lost the same request earlier.
What this practically means
#Executive summary
#Key legal issues
#Whether the application for stay is res judicata
The application is res judicata as the issue of stay was previously determined by a Court of competent jurisdiction between the same parties
The court found that a prior Notice of Motion at the Chief Magistrate's Court included a prayer for stay of the same judgment of 26/05/2022, and that an earlier application for stay had been dismissed with the Memorandum of Appeal struck out and file closed. All conjunctive elements of Section 7 were met: same subject matter, same parties, same title, prior final determination by a competent court. Re-litigating was an abuse of process.
Whether the appeal/preferred Memorandum of Appeal supports the application
The Appellant cannot rely on the Memorandum of Appeal since it was struck out and the file closed
The Respondent showed that an earlier stay application was dismissed and the Memorandum of Appeal struck out, with no appeal or review preferred against those orders. Consequently the substratum of the stay application — the pending appeal — was defective, reinforcing the conclusion that the applicant was attempting to litigate a concluded matter.
Legal principles established
#- Res judicata applies to applications just as it does to suits
- A party cannot relitigate an issue already determined by a court of competent jurisdiction; the only avenue is review or appeal
- All elements of Section 7 of the Civil Procedure Act must be satisfied conjunctively for res judicata to be invoked
Court orders
#- 1.The Notice of Motion dated 21/1/2024 is dismissed
- 2.Costs awarded to the Respondent
- On appeal from
- Chief Magistrate's Court at Kiambu
- MCELC Case No. 32 of 2019
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act; Order 9 Rules 9 and 10, Order 51 Rule 1 and Order 42 Rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Githu v Kenya Com Rabbit Consortium Limited (Environment and Land Appeal E050 of 2022) [2025] KEELC 5271 (KLR)", Case Analysis (2025). Notice of Motion Application dated 21/01/2024 (appeal against Judgment in MCELC Case No. 32 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5271/eng@2025-07-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.