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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application for stay of execution is res judicata having regard to the earlier determination of a similar application
- 2.Whether stay of execution of the Judgment in MCELC Case No. 32 of 2019 should be granted pending appeal
- 3.Whether the law firm of Mukuria & Company Advocates should be granted leave to come on record for the Appellant
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
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- 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
Relief refused
#Stay of execution of the Judgment in MCELC Case No. 32 of 2019 pending appeal
The application is res judicata, the same issues having been determined by a Court of competent jurisdiction
Leave for Mukuria & Company Advocates to come on record for the Appellant
The entire application was found unmerited and dismissed
Costs
Costs are awarded to the Respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Given the foregoing in the end I do find and hold that the Appellant/Applicant’s Notice of Motion dated 21/1/2024 is unmerited and the same is dismissed and costs are awarded to the Respondent. Orders Accordingly.
This being the case it is for sure an outright abuse of the Court process for the Appellant/Applicant to want to relitigate what was already determined by a competent Court of law.
the res judicata principle is meant to lock out from the Court system a party who has had his day in a Court of competent jurisdiction from re-litigating the same issues against the same opponent.
Parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit.
Issues in the judgment
#Dates conflict: the application is dated 21/01/2024 yet the supporting affidavit and grounds are stated to have been sworn/dated June 6, 2022
The earlier stay application is referred to inconsistently as dated 23/06/2022 and as dated 30/05/2023
Judgment is dated 7 July 2025 but the Replying Affidavit is sworn 7/03/2024 and submissions dated 7/04/2025, while paragraph 13 refers to a Ruling of 19/12/2022 on a prior stay application that paragraph 7 attributes to the 23/06/2022 application
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.