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ELCStruck OutNot stated in the judgment· [2025] KEELC 8096 (KLR)

Musau v Shire (Environment and Land Case Civil Suit E017 of 2024) [2025] KEELC 8096 (KLR)

Environment and Land Court
18 November 2025
AKA. Y. Koross
1,254 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Machakos, delivered by Hon. A. Y. Koross, J on 18 November 2025, disposed of a notice of motion dated 26/02/2025 filed by the defendant under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 Rules 1, 2 and 3 of the Civil Procedure Rules, 2010. The defendant, a director of Blue Lime Company Limited, the registered owner of LR No. 12715/656, sought an interlocutory injunction restraining the plaintiff from constructing on, selling, transferring, charging or dealing with the suit property, which had allegedly been subdivided into 37 plots. The court first struck out the plaintiff's replying affidavit because Ms. Aziz & Associates Advocates was not on record for the plaintiff, no notice of change of advocates had been filed, and the purported change filed on 16/06/2025 remained unpaid for. The court framed two issues: whether the motion was res judicata, and whether the threshold for an interlocutory injunction was met. Applying Section 7 of the Civil Procedure Act and the Supreme Court's decision in Kenya Commercial Bank Limited & another v Muiri Coffee Estate Limited & 3 others, the court held that res judicata applies to applications as well as suits. Since a prior ruling of 22/01/2025 by Hon. Lady Justice Nyukuri had already granted the plaintiff a temporary injunction against the defendant in the same matter, the defendant's motion seeking reciprocal injunctive relief between the same parties over the same property was res judicata and an abuse of process amounting to a disguised review and appeal. The second issue was not determined. The motion was struck out with costs in the cause, Ms. Aziz & Associates was given liberty to regularise its representation, further applications were barred save with leave, and a mention date was set for pre-trial directions.

Key legal issues

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01

Whether the defendant's motion dated 26/02/2025 was res judicata

Holding

The motion was res judicata and an abuse of court process warranting striking out; the court did not consider the injunction threshold question.

Reasoning

Section 7 of the Civil Procedure Act bars a court from trying an issue already directly and substantially in issue in a former suit between the same parties, litigating under the same title, heard and finally decided by a competent court. The court found that both motions sought injunctive reliefs over the same property by the same litigants, and the earlier motion had been conclusively determined by Hon. Lady Justice Nyukuri's ruling of 22/01/2025, which granted a temporary injunction against the defendant. The defendant's motion was in substance a disguised review or appeal and therefore an abuse of process.

p. 3
02

Whether the replying affidavit of Ms. Aziz & Associates Advocates could stand

Holding

The replying affidavit was struck out because the firm was not on record for the plaintiff, no notice of change of advocates had been filed, and the purported change filed on 16/06/2025 remained unpaid for.

Reasoning

Although the plaintiff purported to oppose the motion through a replying affidavit deposed on 26/03/2025 filed by Ms. Aziz & Associates Advocates, that law firm was not on record for the plaintiff. No notice of change of advocates had been filed, and a purported change lodged on 16/06/2025 had not been paid for, long after the replying affidavit was filed on 1/04/2025. The court therefore struck out the replying affidavit and allowed the firm liberty to regularise its representation.

Legal principles established

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  • The doctrine of res judicata applies not only to suits but also equally to applications; where a motion seeks the same reliefs already conclusively determined between the same parties, it is res judicata and an abuse of process.
  • A litigant cannot use a fresh motion to seek what amounts to a review or appeal of interlocutory orders already issued by a court of competent jurisdiction.

Court orders

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  1. 1.The notice of motion dated 26/02/2025 is hereby struck out with costs being in the cause.
  2. 2.The law firm of Ms. Aziz & Associates Advocates is at liberty to regularise its representation.
  3. 3.Unless with leave of the court, applications shall not be entertained in this matter.
  4. 4.A mention date shall be given for purposes of pre-trial directions.
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 40 Rules 1, 2 and 3 of the Civil Procedure Rules, 2010

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, "Musau v Shire (Environment and Land Case Civil Suit E017 of 2024) [2025] KEELC 8096 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8096/eng@2025-11-18

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