Kanyoni & 2 others v Nairobi City County; Gathura (Intended Interested Party) (Environment and Land Case Civil Suit 633 of 2009) [2025] KEELC 3741 (KLR)
The bottom line
#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 Preliminary Objection is merited
- 2.Whether the instant Application is an abuse of the Court process
- 3.Whether the Applicant in the Notice of Motion Application dated 3/06/2024 has made out a case for the granting of the orders of joinder
Key legal issues
#Whether res judicata bars the Applicant's second joinder application
Yes. A prior joinder application by the Applicant (through her attorney) was dismissed on 3/06/2024 and not appealed; the doctrine applies to applications within a suit.
The Court applied Section 7 of the Civil Procedure Act and the test of sameness of matter, parties, title, jurisdiction and finality. It held that a prior, unappealed dismissal of a similar joinder application by the same Applicant precluded relitigation, invoking the wider principles of res judicata applicable to interlocutory applications within a suit.
Whether the Application is an abuse of the Court process
Yes. The Applicant sought to sidestep her own executed Power of Attorney and relitigate a decided joinder issue.
Adopting the Muchanga Investments definition, the Court found the Motion wanting in bona fides, vexatious and oppressive because it re-agitated a matter already decided, this time by circumventing the Applicant's own Power of Attorney, thereby irritating the opponent and burdening the efficient administration of justice.
Whether the Preliminary Objection is a proper preliminary objection
Yes, because the facts (existence of the prior Application and Ruling) are undisputed and no extraneous evidence is required.
Guided by Mukisa Biscuit, the Court accepted that limitation and res judicata are pure points of law. Because the existence of the earlier application and ruling was not factually disputed and no extraneous evidence was needed, the objection was properly before the Court notwithstanding authority suggesting res judicata requires probing of evidence.
Legal principles established
#- Res judicata applies not only to suits but also to interlocutory applications within a suit; there must be an end to applications of a similar nature.
- A ruling not appealed against is binding on the party against whom it was made.
Court orders
#- 1.The Preliminary Objection dated 9/07/2024 is merited
- 2.The Notice of Motion Application dated 3/06/2024 by the Intended Interested Party/Applicant is dismissed with costs
- 3.Costs of the Preliminary Objection awarded to the 1st Plaintiff
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court under the Environment and Land Court Act and the Civil Procedure Act (Section 7 res judicata)
Relief refused
#Leave for the Intended Interested Party to join these proceedings
The Application is res judicata, an abuse of court process, and the Applicant failed to meet the threshold for joinder
Costs
Costs of the Preliminary Objection awarded to the 1st Plaintiff/Applicant; the Intended Interested Party's Application dated 3/06/2024 dismissed with costs
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 Preliminary Objection dated 20th November, 2023 is merited.
The Motion dated 6th November, 2023 be and is hereby struck out with costs.
There can be no other finding other than that the Application herein is res judicata.
In conclusion, I find and hold that Application is not only res judicata, but also an abuse of the Court process.
There must be an end to interlocutory Applications as much as there ought to be an end to litigation.
Issues in the judgment
#The final orders refer to a 'Preliminary Objection dated 20th November, 2023' and a 'Motion dated 6th November, 2023', which conflict with the Preliminary Objection dated 9/07/2024 and Motion dated 3/06/2024 adjudicated throughout the ruling.
The ruling contradicts itself on res judicata: paragraph 44 finds the issues 'are separate and distinct' and 'it is not res judicata', contrary to the earlier express finding that the Application is res judicata.
Costs order is internally inconsistent: paragraph 43 awards costs of the Preliminary Objection to the 1st Plaintiff, while paragraph 43 elsewhere states 'the costs of the Preliminary Objection are awarded to the 1st Plaintifi/Applicant' despite the 1st Plaintiff being the Respondent to the Application.
The judgment text is truncated at the outset: numbered paragraphs 1 and 2 are empty and the disposition appears to conflate matters from a different file (paragraphs 47 and 48 refer to consolidation submissions and a Preliminary Objection against 'the Motion of 6th November, 2023' not before this Court).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kanyoni & 2 others v Nairobi City County; Gathura (Intended Interested Party) (Environment and Land Case Civil Suit 633 of 2009) [2025] KEELC 3741 (KLR)", Case Analysis (2025). Ruling on Notice of Motion dated 3/06/2024 and Preliminary Objection dated 9/07/2024 (ELC at Thika; underlying suit per Amended Plaint dated 1st November 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3741/eng@2025-05-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.