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ELCDismissedNotice of Motion Application dated 19th July, 2013 (suits court record not stated)· [2025] KEELC 7464 (KLR)

Chebiego v Flora Chelimo & 3 others (Suing as the Legal Representative of the Estate of Joseph Kipyator Chelimo - Deceased) & another (Enviromental and Land Originating Summons E001 of 2024) [2025] KEELC 7464 (KLR)

Environment and Land Court
30 October 2025
2,201 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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Kenya's Environment and Land Court dismissed a long-pending eviction application because the same issues had already been decided in 2007, and no one can relitigate them.

What this practically means

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Executive summary

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The defendants/applicants, the legal representatives of the late Joseph Kipyator Chelimo (registered owner of L.R. No. Irong/Kessup/65), moved the court by Notice of Motion seeking their substitution in place of the deceased, the eviction of the plaintiff/respondent John Chesire Chebiego from the suit land, police security for the court bailiff, and costs in the cause. They relied on the judgment of R. Nambuye J dated 21.02.2003 said to have ordered the respondent's eviction, and on subsequent rulings by Kaburu Bauni J (13.11.2007) and R. Nyakundi J (11.10.2024). The 2nd respondent, Sammy Kipkorir Cherunya, opposed the application as incompetent, abusive, time-barred under the limitation regime for executing a 2003 decree, incapable of execution against a plaintiff who died in 2014, and anchored on a merely negative decree. The court framed three issues: res judicata, entitlement to the orders, and costs. Applying section 7 of the Civil Procedure Act and the Supreme Court decisions in Communications Commission of Kenya and John Florence Maritime Services, the court found the application identical to an earlier application seeking the same eviction and police-assistance orders, which Kaburu Bauni J heard and determined on merit on 13.11.2007, a decision never set aside, reviewed or vacated. The application was therefore res judicata and the entitlement issue fell away. On costs, the court held costs follow the event but found no nexus between the 2nd respondent and the plaintiff's estate. The application was dismissed with no orders as to costs, each party bearing their own costs.

Key legal issues

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01

Whether the application offends the doctrine of res judicata

Holding

Yes. The instant application mirrors the earlier application dated 07.09.2005/2007 decided by Kaburu Bauni J on 13.11.2007, between the same parties, over the same subject matter and the same cause of action; that decision was on merit, final and never set aside.

Reasoning

Applying section 7 of the Civil Procedure Act and the Supreme Court's restatement of the res judicata elements in John Florence Maritime Services, the court compared the two applications. Both sought eviction of the plaintiff from L.R. No. Irong/Kessup/65 and police assistance in execution. The earlier ruling was rendered on merit and its orders are final and have never been set aside, reviewed or vacated, so all res judicata elements are satisfied.

p. 5
02

Whether the applicants are entitled to the orders sought

Holding

No; this issue fell away once res judicata was established.

Reasoning

The court held that the doctrine of res judicata prohibits a court from trying any issue substantially in issue in an earlier suit or application. Since the eviction and execution orders had already been litigated and determined in 2007, the applicants could not obtain them afresh in the present application.

p. 5
03

Who bears the costs

Holding

Each party to bear their own costs; the 2nd respondent was denied costs for want of nexus with the plaintiff's estate.

Reasoning

While costs follow the event, the orders sought were directed at the plaintiff and his estate. The 2nd respondent demonstrated no connection to that estate justifying an award of costs of defending the application, even though the orders were not directly against him.

p. 5

Legal principles established

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  • An application seeking the same relief between the same parties over the same subject matter as an earlier application heard and determined on merit is res judicata
  • Costs follow the event unless the court directs otherwise

Court orders

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  1. 1.The Notice of Motion Application dated 19th July, 2013 is dismissed as res judicata
  2. 2.Each party to bear their own costs of the application

Authorities

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Legislation

  • Civil Procedure Actsection 7
  • Civil Procedure Actsection 3
  • Civil Procedure Actsection 3A
  • Civil Procedure RulesOrder XXI Rule 30(1) (referred to in the quoted 2007 ruling)
  • Civil Procedure RulesOrder 24 Rules 3, 4, 7 and 10 (invoked by applicants in affidavit)

Cases cited (2)

  • Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others
    [2014] eKLR
  • John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others
    [2021] eKLR
Jurisdiction invoked
Original and inherent jurisdiction of the Environment and Land Court; sections 3, 3A and 7 of the Civil Procedure Act invoked

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, "Chebiego v Flora Chelimo & 3 others (Suing as the Legal Representative of the Estate of Joseph Kipyator Chelimo - Deceased) & another (Enviromental and Land Originating Summons E001 of 2024) [2025] KEELC 7464 (KLR)", Case Analysis (2025). Notice of Motion Application dated 19th July, 2013 (suits court record not stated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7464/eng@2025-10-30

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