[2021] KEELC 1611 (KLR)
The court found that the application for interlocutory injunction was res judicata, as a similar application had previously been dismissed between the same parties regarding the same subject matter. Section 7 of the Civil Procedure Act bars the court from entertaining a matter that has already been heard and finally...
Source-derived case information.
- Citation
- [2021] KEELC 1611 (KLR)
- Parties
- Plaintiff: Francis Mbugua Kamau; Plaintiff: John Kioi Kamau; Defendant: Saikimba Ole Lekishapui
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 501 of 2017
- Procedural Posture
- Notice of Motion / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed
- Judges
- JE Gicheru
- Legal Topics
- Res Judicata, Interlocutory Injunctions, Land Sale Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Mbugua Kamau
Plaintiff
John Kioi Kamau
Plaintiff
Saikimba Ole Lekishapui
Defendant
Procedural Posture
Notice of Motion / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the application for injunction is barred by the doctrine of res judicata.
- 2 Whether the applicant has demonstrated grounds for grant of interlocutory injunction.
- 3 Whether there is any recent activity on the suit land warranting injunctive relief.
Ratio Decidendi
The court found that the application for interlocutory injunction was res judicata, as a similar application had previously been dismissed between the same parties regarding the same subject matter. Section 7 of the Civil Procedure Act bars the court from entertaining a matter that has already been heard and finally decided. Furthermore, the applicant failed to demonstrate any recent activity or new developments on the suit land that would justify the grant of injunctive relief. The court also noted that the proper recourse for the applicant, if dissatisfied with the earlier order, would have been to seek review under Order 45 Rule 1 of the Civil Procedure Rules, not to file a fresh...
Court Disposition
application dismissed
Orders
- The Notice of Motion dated 18/5/2021 is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KAJIADO
ELC NO. 501 OF 2017
(FORMERLY NAIROBI HCCC NO. 1138 OF 2015)
FRANCIS MBUGUA KAMAU
JOHN KIOI KAMAU (Suing as the legal representatives of
the estate Of KAMAU NJOROGE - deceased)..PLAINTIFF
VERSUS
SAIKIMBA OLE LEKISHAPUI.....................DEFENDANT
RULING
This ruling is on the Notice of Motion dated 18th May, 2021. The said Motion seeks to restrain the first defendant either by himself or others from any of the following;
a. Transferring the deceased’s portion of the suit land measuring 9. 6 acres known as LTK/KIMANA/TIKONDO/584 .
b. Constructing on the suit land until the suit is heard and determined.
c. Residing on the suit premises.
d. Costs.
The application is supported by an affidavit sworn by the second Plaintiff John Kioi Kamau in which he narrates how his late father bought the suit land from the first defendant way back in 1974. The suit land namely LTK/KIMANA/TIKONDO/584 was partitioned from LR. 46. Later on, the partitioning was reversed and the land reverted to the first defendant who has now developed part of the said land and put up houses.
Annexed to the applicant’s affidavit are four copies of agreements and acknowledgements of money received dated 1974 and 1975.
In addition to the above annextures, there are four pictures of buildings under construction and some maps. The application though served on the respondents is not opposed and no replying affidavit or grounds of opposition have been filed.
A perusal of the record shows that on 25/9/2017, a similar application was dismissed by the court. It is dated 10/11/2015 and just like the current application, it was brought under order 40 rules 1, 2 and 3 of the Civil Procedure Rules.
Having carefully considered the application in its entirety, I find that it has no merit for the following reasons;
Firstly, the motion is Res Judicata. Section 7 of the Civil Procedure Act provides as follows;
“ No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under which they are any of them claim, litigating under the same title, in a court competent to try such subsequent said or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court”
I need not say more.
Secondly, there is no recent activity on the suit land going by the applicant’s affidavit which does not complain of any new development. Finally, I find that the only avenue available to the applicant was review of the order dated 25/9/2017 under Order 45 Rule 1 of the Civil Procedure Rules if the grounds enumerated therein exist.
I dismiss the application dated 18/5/2021 for the above reasons.
DATED SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 14TH DAY OF OCTOBER 2021
M.N. GICHERU
JUDGE