Loice Khancendi Onyango v Alex Inyangu & Another [2018] KEELC 1918 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a repeated stay application, confirming you cannot re-argue the same issue after losing once.
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 Notice of Motion dated 13th November 2017 is barred by the doctrine of res judicata having regard to the application dated 22nd February 2017 dismissed on 7th November 2017
- 2.Whether the court should enlarge time within which to deposit the security of Kshs.1,500,000.00 ordered on 7th February 2017
- 3.Whether the stay of execution of the decree in Mombasa CMCC No. 3443 of 2013 should be restored/granted
Key legal issues
#Whether the application is res judicata
Yes; the same parties, seeking the same stay orders over the same decree, were heard and determined in the application of 22nd February 2017 which was dismissed on 7th November 2017.
The court compared the application dated 13th November 2017 with that dated 22nd February 2017 and the ruling of 7th November 2017, finding identical parties and substantially identical issues, including the question of the security deposit. Section 7 of the Civil Procedure Act and Section 28 of the Environment and Land Act bar re-litigation of matters directly and substantially in issue and finally decided between the same parties, and the principle extends to interlocutory applications.
Whether enlargement of time to deposit security should be granted
No; the nine-month delay was unexplained and the discretion would not aid a litigant who slept on her rights.
The court held that even if the rules permitted the enlargement, it would not exercise its wide discretion in the applicant's favour given the inordinate, unexplained delay and the applicant's apparent strategy of delaying justice; the overriding objective would not assist her.
Legal principles established
#- The doctrine of res judicata applies to interlocutory applications with the same force as to final suits
- The court's discretion to enlarge time will not be exercised in favour of a litigant who slept on her rights and sought to delay the course of justice
Court orders
#- 1.The Notice of Motion dated 13th November 2017 is dismissed
- 2.Costs of the application to the 1st Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court, Mombasa
- Mombasa CMCC No. 3443 of 2013
- Jurisdiction invoked
- Appellate/ supervisory jurisdiction of the Environment and Land Court over the Chief Magistrate's Court; Section 28 of the Environment and Land Act
Relief refused
#Enlargement of time to deposit security of Kshs.1,500,000.00
Made about nine months after the order with no plausible explanation; the issue could have been raised in the earlier application
Revival/reduction of the security and restoration and grant of stay of execution of the decree
The application is barred by res judicata, the same issues having been determined in the ruling of 7th November 2017
Costs
The application is dismissed with costs to the 1st Respondent
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.
For the above reasons, I find that the appellant’s Notice of motion dated 13 th November 2017 lacks merit. The same is hereby dismissed with costs to the 1st Respondent.
By virtue of Section 7 of the Civil Procedure Act, this application is barred by the doctrine of res judicata.
It has also been stated that the principle applies to applications with the same force whether the application be final or interlocutory.
The power of the court should be exercised judiciously and should not be used to aid a litigant who slept on her rights for so long and deliberately sought to delay the course of justice.
Issues in the judgment
#The judgment refers to 'Article 148 of the Constitution' as bearing on stay of execution, which appears anomalous in this context
The name of the presiding judge is not printed; the judgment is signed only 'JUDGE'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Loice Khancendi Onyango v Alex Inyangu & Another [2018] KEELC 1918 (KLR)", Case Analysis (2018). Notice of Motion dated 13th November 2017 (arising from appeal in Mombasa CMCC No. 3443 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1918/eng@2018-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.