Sikalieh (Suing as the Chairman of Karen & Langata District Association) v De La Salle Brothers & 5 others (Environment and Land Petition 071 of 2024) [2025] KEELC 5685 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether filing a Notice of Appeal bars an application for review
A party must elect between appeal and review, but the withdrawal of the Notice of Appeal saved the application from being held incompetent
Following Gerald Kithu Muchanje v Catherine Muthoni Ngare, the court held that a party cannot exercise both options simultaneously. Although the review was filed during the pendency of the Notice of Appeal, the Applicant subsequently withdrew the notice, so the court declined to strike the application as incompetent and proceeded to consider the review grounds on their merits.
Whether the discovery that the 1st Respondent is a non-juristic entity constitutes new and important matter for review
No - the information was within the Applicant's knowledge having been served earlier and could have been obtained by due diligence
The alleged new information was contained in a replying affidavit served on the Applicant before the hearing of the earlier application. A registry search would also have revealed ownership of the suit property. The supporting affidavit did not explain how the information qualified as new and important matter under Order 45 of the Civil Procedure Rules.
Whether there was an error apparent on the face of the record in the res judicata ruling
Yes - the court erred in applying res judicata where the parcels of land and the developers differed and not all parties litigated under the same title
Although the reliefs in both petitions were similar, the impugned developments concerned different parcels (LR No. 28712 versus LR No. 7943) by different proponents. The 1st Respondent could not litigate through the Interested Parties in Petition No. E027 of 2022, so applying res judicata wholesomely was a mistake apparent on the face of the record warranting review.
Legal principles established
#- The doctrine of res judicata cannot be applied wholesomely where not all parties litigate under the same title
- Discovery of new information as a ground of review requires proof of due diligence and that the matter was not within the applicant's knowledge
- A party who has filed a Notice of Appeal cannot simultaneously pursue review, but withdrawal of the Notice of Appeal cures the incompetence
Court orders
#- 1.The Order/Ruling delivered on 6th February 2025 dismissing the Petition with half costs for being res judicata is reviewed and is hereby set aside
- 2.The Petition is re-instated to be heard on its merits
- 3.Each party to bear their respective costs of this application
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sikalieh (Suing as the Chairman of Karen & Langata District Association) v De La Salle Brothers & 5 others (Environment and Land Petition 071 of 2024) [2025] KEELC 5685 (KLR)", Case Analysis (2025). ELC Petition No. E071 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5685/eng@2025-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.