Sudi & 2 others v Kariuki t/a Wiskam Auctioneers; Dries Auctioneers (Interested Party) (Environment and Land Miscellaneous Case 206 of 2019) [2025] KEELC 7736 (KLR)
The bottom line
#The Environment and Land Court dismissed a repeat application as an abuse of process, warning that rewording the same requests won't bypass earlier refusals.
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 instant application is res judicata
- 2.Whether the applicants are deserving of the orders sought
Key legal issues
#Whether the chamber summons dated 30th April 2025 is barred by res judicata
The application is res judicata because it repeats, with cosmetic variations, the application dated 20th April 2023 which Oguttu Mboya, J dismissed on 18th May 2023, between the same parties and raising the same issues arising from the taxing officer's ruling of 28th February 2023
The court compared the prayers in both applications and found them similar: change of advocates, challenging the taxation ruling of 28th February 2023, and leave to file a reference out of time. The prior ruling had already addressed the correct procedure (Order 9 Rule 9 and Rule 55 of the Auctioneers Rules) and the applicants' explanation for delay, yet the applicants refused to comply and returned with differently-worded prayers seeking the same reliefs.
Whether the applicants deserve the discretionary orders sought (stay, setting aside decree, leave to appeal out of time, DCI investigation)
Having found the application res judicata and an abuse of process, the court declined to consider the second issue and held the applicants undeserving of any orders
The court held that entertaining a duplicated application would be a mockery of judicial process and a waste of the court's time. The prior ruling of 18th May 2023 had already explained why discretion would not be exercised in the applicants' favour, and the applicants' persistent non-compliance with the indicated procedure disentitled them from relief.
Legal principles established
#- For res judicata to apply, the issue in the latter suit must have been directly and substantially in issue in a former suit between the same parties or parties litigating under the same title, heard and decided by a competent court
Court orders
#- 1.The chamber summons dated 30th April 2025 is dismissed
- 2.Costs of the application awarded to the respondent, assessed at KShs.150,000/-
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1B(1) and 3A, 5, 77, 78(a) and (e)(2) of the Civil Procedure Act; Rule 55 of the Auctioneers Rules; Order 42 Rule 6(1) of the Civil Procedure Rules
Relief refused
#Leave to come on record for new advocates, leave to appeal out of time, examination/setting aside of the taxation and decree, stay of warrants of attachment and DCI investigation orders
The application is res judicata, having substantially duplicated a prior application dated 20th April 2023 which was heard and determined, and is an abuse of court process
Costs
Costs to the respondent, assessed at KShs.150,000/-
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.
The chamber summons dated 30th April, 2025 lacks merit and it is an abuse of the court process. The same is hereby dismissed with costs to the respondent assessed at KShs.150,000/. Orders accordingly.
With an attempt to hood wink this court by using difierent terms to seek the court’s intervention through its prayers, the applicants cannot lie to this court that the instant application is not res judicata.
the instant application is a total abuse of court process for the reason that a similar application was filed seeking almost similar prayers, and the same was dealt with
Issues in the judgment
#The judgment cites the taxing decision variously as producing a decree of KShs.1,876,000/- (applicant's affidavit) and a taxed/certified sum of KShs.1,876,300/- (respondent's affidavit), and separately refers to a taxation award of KShs.1,500,000/-
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sudi & 2 others v Kariuki t/a Wiskam Auctioneers; Dries Auctioneers (Interested Party) (Environment and Land Miscellaneous Case 206 of 2019) [2025] KEELC 7736 (KLR)", Case Analysis (2025). Milimani Misc Appl arising from Miscellaneous Case Number 206 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7736/eng@2025-11-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.