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ELCDismissedNot stated in judgment (Chamber Summons dated 03/12/2024)

Sare Developers Limited v Airo & another (Environment and Land Appeal E013 of 2022) [2025] KEELC 5089 (KLR)

Environment and Land Court
18 June 2025
FNFRED NYAGAKA
1,289 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a second attempt to extend time for filing a taxation reference because the same request had already been decided.

What this practically means

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Executive summary

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The Applicant, by Chamber Summons dated 03/12/2024 under sections 1A, 1B and 3A of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules, sought enlargement of time and leave to file a taxation reference against the taxing officer's ruling of 19/04/2023 taxing the Respondent's bill of costs at Kshs. 2,077,517, plus a stay of execution. The Applicant contended the bill was erroneously taxed on an appeal rather than the dismissed application, and relied on a prior application for leave that the court had allowed, followed by a notice of objection and the taxing officer declaring herself functus officio on 14/12/2023. The Respondent opposed, arguing the application was res judicata, having been canvassed in a Chamber Summons dated 25/05/2023 that was determined by a ruling of 23/10/2023 granting 21 days' leave; he also cited unexplained delay and abuse of process. The court framed three issues: res judicata, enlargement of time, and costs. Applying Section 7 of the Civil Procedure Act as construed in In re Estate of Riungu Nkuuri and IEBC v Maina Kiai (elements satisfied conjunctively), the court found the present application's issues were directly and substantially in issue in the earlier application and were heard and finally determined by the ruling of 23/10/2023. Additional prayers were merely supplementary to the main prayer for leave. The court dismissed the application as res judicata and awarded costs to the respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Application is Res Judicata
  2. 2.If so, whether the order for enlargement of time to file the appeal should issue
  3. 3.Who to bear the costs of the application

Key legal issues

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01

Whether the application was res judicata

Holding

The application was res judicata because its issues were directly and substantially in issue in the Chamber Summons dated 25/05/2023, which was heard and finally determined by the ruling of 23/10/2023 granting 21 days' leave to file a reference

Reasoning

The court applied Section 7 of the Civil Procedure Act as explained in In re Estate of Riungu Nkuuri (Deceased) and IEBC v Maina Kiai, requiring the res judicata elements to be satisfied conjunctively. On perusal of the record, the earlier application sought enlargement of time to file the same reference against the same taxing ruling. The new prayers were merely supplementary to the main prayer for leave, so the matter had been heard and finally determined.

p. 3

Legal principles established

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  • All elements of res judicata under Section 7 of the Civil Procedure Act must be satisfied conjunctively
  • An application whose main relief was already determined is res judicata even if supplementary prayers are added

Court orders

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  1. 1.The Application dated 03/12/2024 is res judicata and is dismissed
  2. 2.Costs to the respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

FN
majority

Wrote the judgment

Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules

Relief refused

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Enlargement of time and leave to file a taxation reference to the ruling of the taxing officer of 19/04/2023, and stay of execution of the bill of costs

The application was res judicata, its issues having been heard and finally determined in the ruling of 23/10/2023 on the Chamber Summons dated 25/05/2023

p. 3

Costs

Costs to the respondents

Quotable passages

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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 issues the present Application raises were directly and substantially in issue in the Application dated 25/05/2023, and they were heard and finally determined as illustrated above.
p. 3Res judicata - identity of issues with prior determined application
Whether the Applicant added one or two other prayers to the one for leave, the main one was one seeking leave: the other prayers were supplementary to the one seeking leave. The Application is therefore res judicata.
p. 3Supplementary prayers do not save an application from res judicata
1. The Application dated 03/12/2024 is res judicata and is dismissed. 2. Costs to the respondents.
p. 3Final orders - dismissal with costs

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, "Sare Developers Limited v Airo & another (Environment and Land Appeal E013 of 2022) [2025] KEELC 5089 (KLR)", Case Analysis (2025). Not stated in judgment (Chamber Summons dated 03/12/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5089/eng@2025-06-18

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