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ELCDismissedNot stated in judgment (suit pending since 2015)· [2025] KEELC 6497 (KLR)

Washe & another v Kaduka & 13 others (Environment and Land Case 155 of 2015) [2025] KEELC 6497 (KLR)

Environment and Land Court
1 October 2025
1,877 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to stop a land case over unpaid costs from a different, withdrawn suit, and it proceeds to judgment.

What this practically means

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Executive summary

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The Defendants filed a Notice of Motion dated 31st May 2025 under Sections 1A, 1B and 63 of the Civil Procedure Act and Order 25 Rule 4 of the Civil Procedure Rules, seeking a stay of the present suit until the Plaintiffs paid costs of Kshs. 139,612 awarded following the withdrawal of Kilifi CMCC No. 61 of 2015, with dismissal of the suit if unpaid after 30 days. The Defendants argued that the present suit was substantially the same as the withdrawn one and that Order 25 Rule 4 barred its continuation, citing Gladys Nduku Nthuki v Letshego Kenya Limited and PIL Kenya Limited v Joseph Oppong. The Plaintiffs opposed, contending the present suit was materially broader - adding a claim for declaration of land ownership within the exclusive jurisdiction of the Environment and Land Court under Article 162(2)(b) - that res judicata could not arise from a withdrawn suit, that the Defendants had slept on their rights for ten years and only moved at the judgment stage, and that enforcement of the costs decree lay under Section 38 of the Civil Procedure Act. The court held that the two suits were not substantially the same because the claim for a declaration of ownership introduced a new and distinct cause of action; that a withdrawn suit cannot ground res judicata; and that the Defendants' delay amounted to an abuse of process offensive to the overriding objective and the Plaintiffs' rights to a fair hearing and access to justice under Articles 50(1) and 48. The application was dismissed with costs to the Plaintiffs, and the matter set down for mention on 19th November 2025 for issuance of a hearing date.

Key legal issues

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01

Whether the present suit falls within Order 25 Rule 4 as a refiling of the same cause of action

Holding

It does not; the current suit adds a claim for declaration of ownership and falls within the ELC's jurisdiction, making it materially broader than the withdrawn trespass suit

Reasoning

The withdrawn Kilifi suit was limited to trespass and injunctive relief, while the present suit also seeks a declaration of ownership implicating questions of title within the ELC's exclusive mandate under Article 162(2)(b). The claim for ownership introduces a new and distinct cause of action, so the bar in Order 25 Rule 4 is not triggered.

p. 3
02

Whether res judicata applies to a withdrawn suit

Holding

No; withdrawal does not amount to a determination on the merits

Reasoning

The court held that the defendants' invocation of res judicata was misconceived because a withdrawn suit never proceeds to a determination on the merits, an essential element of the doctrine. The earlier suit was discontinued on 8th April 2015 before trial, so it cannot bar the present proceedings.

p. 4
03

Whether the late application constitutes abuse of process

Holding

Yes; the ten-year delay in raising unpaid costs, raised only at the judgment stage, suggested an ulterior motive and offended the overriding objective

Reasoning

The defendants waited nearly ten years and moved only when the fully-heard matter was ready for judgment. The court found this delay indicative of an intent to derail proceedings, contrary to Sections 1A and 1B of the Civil Procedure Act, and held that Section 38 provides the proper enforcement route for the costs decree.

p. 4

Legal principles established

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  • Order 25 Rule 4 stay applies only where the subsequent suit is brought on the same or substantially the same cause of action as a discontinued suit with unpaid costs
  • A withdrawn suit does not culminate in a determination on the merits and cannot found a res judicata bar

Court orders

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  1. 1.The Notice of Motion application dated 31/5/2025 is dismissed with costs to the Plaintiffs
  2. 2.The matter shall be mentioned on 19/11/2025 for issuance of a hearing date

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B
  • Civil Procedure ActSection 38
  • Civil Procedure ActSection 63
  • Civil Procedure RulesOrder 25 Rule 4
  • Constitution of KenyaArticle 162(2)(b)
  • Constitution of KenyaArticle 50(1)
  • Constitution of KenyaArticle 48

Cases cited (3)

  • Japheth Kalama Washe v Chrispus Deche Kaduka & 4 Others
    Kilifi Civil Suit No. 61 of 2015
  • Gladys Nduku Nthuki v Letshego Kenya Limited; Mueni Charles Maingi (intended plaintiff)
    [2022] eKLR
  • PIL Kenya Limited v Joseph Oppong
    Civil Appeal No. 102 of 2007
Jurisdiction invoked
Article 162(2)(b) of the Constitution (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, "Washe & another v Kaduka & 13 others (Environment and Land Case 155 of 2015) [2025] KEELC 6497 (KLR)", Case Analysis (2025). Not stated in judgment (suit pending since 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6497/eng@2025-10-01

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