Kochale & 5 others (Suing on behalf of the residents of Laisamis Constituency and Karare Ward Marsabit County) v Lake Turkana Wind Power Ltd & 4 others; Lesianntam & 5 others (Interested Parties) (Environment & Land Case 163 of 2014)  KEELC 19 (KLR) (16 January 2023) (Ruling)
Neutral citation:  KEELC 19 (KLR)
Republic of Kenya
Environment & Land Case 163 of 2014
PM Njoroge, JG Kemei & YM Angima, JJ
January 16, 2023
Mohamud Iltarakwa Kochale
Kochale Somo Chale
Issa Jitewe Gambare
David Tomasot Arakhole
Suing on behalf of the residents of Laisamis Constituency and Karare Ward Marsabit County
Lake Turkana Wind Power Ltd
Marsabit County Government
Chief Land Registrar
National Land Commission
Aaron Iltele Lesianntam
Henry Parasian Sakalpo
Job Lmalsian Lengoya
Gitson Energy Limited
1.By a plaint dated 14.10.2014 the Plaintiffs sued the Defendants seeking the following reliefs:
2.The Plaintiffs pleaded that the suit land which was their cancestral land had been unlawfully and irregularly alienated to the 1st Defendant for the purpose of setting up a wind power project in Loiyangalani in Samburu County. It was contended that due process was not followed in the setting apart of the suit land as required by the former Constitution of Kenya and the Trust Land Act (now repealed) and that the process was undertaken without any compensation to the affected communities. It was further contended that as a consequence the Plaintiffs’ environmental and cultural rights had been violated hence the suit.
3.After hearing a total of 19 witnesses and considering the submissions of all the concerned parties, the court delivered judgement on 19.10.2021 in which it held that the setting apart of the suitland was irregular and unlawful. Consequently, the court made the following orders for disposal of the suit:
B. The Intended 6ThInterested Party’s Application
4.By a notice of motion dated 05.05.2022 expressed to the based upon sections 1A, 1B, 3, & 3A of the Civil Procedure Act (CAP.21), Order 4 rule 10 Order 51 of the Civil Procedure Rules 2010 (the Rules), Articles 27, 48,50 & 159 of the Constitution of Kenya 2010, the inherent powers of the court and all such enabling provisions of the law, the intended 6th Interested Party (the Applicant) sought the following orders:a.Spentb.That Gitson Energy Limited , the Applicant be joined in the proceedings as an Interested Party.c.That upon granting of the prayer for joinder, Gitson Energy Limited be allowed to build its wind farm as was the case with Lake Turkana Wind Power Limited which was allowed to build its wind farm as the setting apart of land was in progress.d.That costs of the application be awarded to the Applicant.e.That the court do grant such other orders as it may deem if in the circumstances.
5.The application was based upon the various grounds set out on the face of the motion and the contents of the supporting affidavit sworn by James Gitau on 05.05.2022 and the exhibits thereto. It was contended that the Applicant has been working towards establishing a 300MW hybid wind farm and 50MW solar power plant in Bubisa in Marsabit County for the past 20 years without success due to various legal and administrative setbacks.
6.The Applicant contended that although the Commissioner of Lands had initially set apart about 60,705 ha of land for the its proposed project vide Gazette Notice No. 13135 published on 21.9.2012 the same was ultimately quashed by the High Court in Nairobi High Court Misc Application No 374 of 2012 which decision was affirmed by the Court of Appeal in Nairobi C.A No. 47 of 2014 –Gitson Energy Limited vs Hon Francis Chacha Ganya & 6 Others  eKLR
7.The Applicant contended that despite following up with the National Land Commission, the Cabinet Secretary for Lands, as well the Chief Land Registrar to address the land issue for the proposed project there has been undue delay in addressing the matter. It was further contended that the delay on the part of the said government officials was negatively impacting the Applicant, the community and the Kenyan economy.
8.The Applicant further contended that it had been treated in a discriminatory manner in comparison to the 1st Defendant in that the latter had been allowed to build its wind farm as the process of setting apart was in progress. In the premises, it sought to be joined in the suit and to be allowed to undertake its proposed project in Bubisa in Marsabit County.
C.Preliminary objections to the application
9.The 1st Defendant filed a notice of preliminary objecton dated 17.06.2022 challenging the Applicant’s application on the following grounds:a.That the court had no jurisdiction to entertain the application on account of the doctrines of res judicata, functus officio, sub, judice and non-justiciability.b.That the Applicant had no locus standi since it had no identifiable stake in the proceedings.c.That the instant application was a manifestation of forum shopping.
10.The Attorney General on behalf of the 3rd & 4th Defendants also filed a notice of preliminary objection dated 15.06.22 challenging the said application on the following grounds:a)The application was sub-judice on account of pendency of Nairobi Civil Appeal No. E43 of 2022- Energy & Petroleum Regulatory Authority vs Gitson Energy Limited & 5 Othersb)The application seeks to challenge or appeal the decisions and proceedings pending before the Court of Appeal.c)The application is an abuse of the court process which is intended to delay the implementation of the judgment dated 19.10.2021.
D. The rejoinder by the applicant
11.The applicant filed a lengthy 69 - paragraph affidavit sworn by James Gitau on 12.07.2022 in response to the preliminary objections raised by the 1st , 3rd & 4th Defendants. It was contended that the court had jurisdiction to entertain the application and to order regularization of the impugned setting apart process of the suitland including the Applicant’s land. It was contended that the 1st, 3rd , & 4th Defendants had misrepresented facts in their preliminary objections. The Applicant contended that the pending application by the 1st Defendant had a direct bearing on it since it has been waiting for the setting apart of its land for the past 5years.
12.The Applicant contended that in previous legal proceedings the Attorney General had supported its efforts to set up its intended wind farm project. It was further contended that in its judgement dated 19.10.2021 this court referred to Nairobi Civil Appeal No.47 of 2014 Gitson Energy Limited vs Hon Francis Ganya and 6 Others (2017) eKLR hence it would be in order for the Applicant to be joined in the instant suit to facilitate the regularization of the setting apart of its project land.
13.The rest of the contents of the replying affidavit constituted argumentative matters, reports from newspaper cuttings and other factual matters which have no place in the determination of the preliminary objections raised by the 1st, 3rd and 4th Defendants
E. Directions On Submissions
14.It is evident from the material on record that it was directed that the preliminary objections shall be canvassed through through written submissions. The record shows that the 1st Defendant filed written submissions dated 4.7.2022 in support of its preliminary objection. The Attorney General filed written submissions dated 4.07.2022 in support of the 3rd and 4th Defendants preliminary objections whereas the Applicant filed its submissions dated 14.07.2022 in opposition to the preliminary objections.
F. The Issues For DeterminatioN
15.The court has considered the two notices of preliminary objections on record, the applicants replying affidavit in response thereto as well as the material on record. The court is of the opinion that the following issues arise for determination herein:a.Whether the court became functus officio upon delivery of judgment.b.Whether the application raises matters which are res judicata.c.Whether the application is sub-judice.d.Whether the application is an abuse of the court process.e.Who shall bear costs of the application.
G . Analysis and Determination.(a)Whether the application raises matters which are res judicata
16.The court has considered the submissions by the 1st, 3rd & 4th Defendants and the interested parties that the instant application raises matters which are res judicata on account of previous proceedings before High Court in Hon Francis Chachu Ganya & 4 others vs the Attorney General & Another  eKLR and before the court of Appeal in Gitson Energy Limited vs Francis Chachu Ganya & 6 others  eKLR. They relied upon section 7 of the Civil Procedures Act and the cases of Siri Raw Kaura vs M.J.E Morgan  E.A 462; Vancy Mwangi t/a Worthlin Marketers vs Airtel Networks (K) Ltd (formerly Celtel Kenya Ltd) & 2 others  eKLR and Charity Njanja Mwaniki (suing on her behalf and 8 other siblings) vs James Mwaniki Gaturu & another  eKLR in support of their submissions.
17.The Applicant on its part contended that Section 7 of the Civil Procedures Act was inapplicable and that the instant application did not raise matters which were res judicata in that the previous proceedings before the High Court and the Court of Appeal did not involve the same parties or parties litigating under the same title. The Applicant cited the case of Invesco Assurance Co Ltd & 2 others vs Auctioneers Licencing Board & others  eKLR in support of its submissions.
18.Section 7 of the Civil Procedures Act stipulates as follows:
19.In the case of Judicial Service Commission V Sheikh Abubakar Bwanakei & Another  eKLR the Court of Appeal considered the purpose of the doctrine of res judicata as follows:‘The doctrine of res judicata in effect, allowa a litigant only one bite at the cherry. It prevents a litigant, or persons claiming under the same title from returning to court to claim further reliefs not claimed in the earlier action. It is a doctrine that serves the cause of order and efficacy in the adjudication process. The doctrine prevents a multiplicity of suits, which would ordinarily clog the courts, apart from occasioning unnecessary costs to the parties, and ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party conclusively”.
20.The principles to be applied in assessing whether or not a matter or issue is res judicata were also considered by the Court of Appeal in the said case as follows:a.The suit or issue was directly and substantially in issue in the former suit.b.That former suit was between the same parties or parties under whom they or any of them claim.c.Those parties were litigating under the same title.d.The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised?See this Court’s decision in Independent Electoral & Boundaries Commission vs Maina Kiai & 5 others  eKLR”
21.The court is of the opinion that although the instant application may be caught up by some of the elements of res judicata, not all the 4 elements set out above have been satisfied. In particular, it is evident from the material on record that the parties in the previous proceedings are not the same as the parties in the present suit. It is also evident the requirement of litigating under the same title has not yet been satisfied. Accordingly, the court finds and holds that the instant application is not caught up by the doctrine of res judicata.(b)Whether the application is sub judice.
22.The 1st, 3rd & 4th Defendants and the interested parties also contended that the instant application was sub judice on account of an appeal before the Court of Appeal arising from the judgment of the High Court in Nairobi High Court Judicial Review No 324 of 2018 – Gitson Energy Limited vs Cabinet Secretary of the National Treasury & others. It was contended that there was a pending application for stay pending appeal in Nairobi Civil Appeal No E43 of 2020 – Energy & Petroleum Regulatory Authority vs Gitson Energy Limited & 5 others.
23.The Applicant’s position was that the proceedings in Nairobi Judicial Review No 324 of 2018 –Republic vs Cabinet Secretary of the National Treasury & 5 others ex parte Gitson Energy  eKLR were concluded on 15.11.2021 and that none of the Respondents in the matter had filed a substantive appeal against the judgment of the High Court. It was consequently denied that the instant application was sub judice any other pending proceedings.
24.Section 6 of the Civil Procedures Act stipulates as follows on the issue of sub judice:
25.The court has perused the judgment of the High Court in Nairobi Judicial Review Application No 324 of 2018 and noted the reliefs sought and those granted by the court. The court has noted that the only substantive reliefs granted by the High Court were as follows:
26.It is evident to the court that the said Judicial Review Application concerned totally different issues relating to issuance of a permit or licence; construction of switching sub-station; and the inclusion of the Applicant’s project in the list of approved Wind Power Projects. It had nothing to do with setting apart of community land for the wind power project or for the Applicant to be permitted to undertake its project whilst the acquisition of such land was in progress.
27.The court is thus of the opinion that the Sub Judice rule as enunciated in section 6 of the CPA is not applicable to the instant application since the issues which were directly and substantially in issue in the Judicial review proceedings were different from the issues raised in the instant application. The court consequently feels and holds that the instant application is not Sub Judice and in violation of the law.(c ) Whether the court is functus officio
28.The court has considered the material and submissions on record on this issue. The 1st, 3rd and 4th defendants contended that the court had no jurisdiction to entertain the instant application because it was functus officio.
29.Whereas the 1st, 3rd and 4th Defendants and the Interested Parties contended that the court was functus officio and had no jurisdiction to entertain the instant application, the Applicant contended otherwise. It was submitted by the 1st Defendant that the instant application was inviting a merit based review of the judgment dated 19.10.2021 hence barred by law. The 1st Defendant relied upon the cases of Telkom Kenya Limited vs John Ochada (suing on behalf of 966 former employees of Telkom Kenya Limited)  eKLR and John Gilbert Ouma vs Kenya Ferry Service  eKLR in support of its submission.
30.The Applicant, on the other hand, submitted that the court was not functus officio and that it could still entertain the instant application and grant the orders sought without violating the law. The Applicant relied upon the case of Silvanus Kizito vs Edith Nkirote Mwiti  eKLR in support of its submission. It was emphasized that a court does not become functus officio merely because it has rendered a judgment in a suit.
31.The Applicant further submitted that it was not seeking to reopen the decided suit but was merely trying to avoid a multiplicity of suits on the same issue by filing the instant application so that the court may resolve the issue of setting apart of community land once for all. It was further submitted that the Applicant had a legitimate expectation to be treated fairly and to be allowed to build its own wind farm just like the 1st Defendant was allowed to do before the process of setting apart could be finalized.
32.The doctrine of functus officio was considered by the Court of Appeal in the case of Telkom Kenya Limited case (Supra) as follows:1.Where there had been a slip in drawing it up, and2.Where there was an error in expressing the manifest intention of the court. See Paper Machinery Limited v J.O. Rose Engineering Corp. (1934) S.C.R 186”
33.The Court of Appeal further explained the boundaries of the doctrine of functus officio as follows:
34.The court has considered the ruling of the High Court in the Silvanus Kizito case which was cited by the Applicant. In the said case the trial court had rendered judgment against the Appellant in favour of the Respondent. When the Appellant filed an application for stay of execution of the decree pending appeal the trial court dismissed the same on the basis that it had become functus officio hence the application ought to be canvassed before the High Court.
35.In allowing the Appellant’s application for stay pending appeal the High Court held, inter alia, that:
36.It is evident from the above that the facts and circumstances of the Silvanus Kizito case are clearly distinguishable from those of the instant case. The Appellant in the cited case was not seeking a reconsideration of the decision of the trial court on merit nor was he asking any substantive orders which ought to be the subject of separate proceedings. The appellant was simply seeking a stay of execution of the decree pending appeal which remedy is provided for under Order 42 rule 6 of the Civil Procedures Rules, hence the trial court was clearly wrong in holding that it was functus officio.
37.Turning to the facts of the instant application, it is evident that the Applicant was not party to the instant suit from its inception to the point of conclusion. The court did not hear any evidence on its grievances and neither did it receive nor consider any submissions thereon. The court was, however, aware that the Appellant had earlier on been engaged in separate proceedings over similar issues which matters were heard and concluded before courts of competent jurisdiction being the High Court and the Court of Appeal respectively. In fact the court cited the court of Appeal judgment in Gitson Energy limited vs Francis Chacha Ganya & 6 others  eKLR as an authority on the issue of setting apart of trust land.
38.The court is thus of the opinion that having delivered its judgment on the matters presented before it on 19.10.2021, it effectively became functus officio in so far the merits of its decision is concerned. It cannot revisit the judgment for the purpose of granting substantive orders to the Applicant in the manner sought by the Applicant. The court is not satisfied that the Applicant’s case falls within any of the exceptions recognized by the court of Appeal in Telkom Kenya Limited case or the Silvanus Kizito Case. Accordingly, the court finds and holds that it has no jurisdiction to entertain the instant application on account of the doctrine of functus officio.(d)Whether the instant application is an abuse of the court process.
39.The 1st Defendant and the interested parties contended that the instant application was an abuse of the court process for several reasons. First, that it raises matters which are not justiciable. Second, that it was a manifestation of forum shopping since the Applicant has previously litigated similar issues before the High Court and the Court of Appeal.Thirdly, it was contended that the applicant’s grievances were fully ventilated and adjudicated in previous proceedings with finality and that the Applicant ought to have presented the issues raised in the instant application in the previous proceedings before the High Court and the Court of Appeal. The 1st Defendant cited the case of Joseph Odhiambo Apondi vs Canuald Metal Packaging (k) Ltd  eKLR on the issue of forum shopping whereas the interested parties cited the cases of Mariangela Beltrami vs Mtwapa Bay Investiments Ltd [2021 eKLR and Muchanga Investiments Ltd vs safaris Unlimited (Africa) Ltd & 2 others  KLR 229 on the issue of abuse of court process
40.The Applicant denied that the instant application was a manifestation of forum shopping. It submitted that it was simply seeking to protect and vindicate its constitutional rights under Articles 22, 27, 47, 48 and 50 of the Constitution of Kenya hence it had a right to file the instant application.
41.In the Muchanga Investments Case (supra) the Court of appeal considered the meaning of the term abuse of Court process by making reference to South Africa and Nigerian cases. the court stated, inter alia, that,
42.The Court further held that;
43.The Court has considered the material on record and the circumstances of the matter. It is evident that the Applicant’s main grievance is that despite being initially granted about 150,000 acres of land by then County Council of Samburu for the purpose of setting up its Wind Power Project the allocation was subsequently nullified by the High Court. The Applicant’s consequent appeal to the Court of Appeal was unsuccessful since the appellate court also found that the process of setting apart the land was unlawful and unconstitutional.
44.It is thus clear that the Applicant’s issue in relation to the land for its intended project was heard and determined with finality by the Court of Appeal. There is no evidence on record to demonstrate that the Applicant escalated the issue to the Supreme Court of Kenya. So, if the Applicant lost before Court of Appeal on the issue of setting a part of the land intended for its project, how can it lawfully salvage its claim before this court which is subordinate to the Court of Appeal? How can the Applicant legally seek to benefit from a judgment in which it did not file pleadings and tender any evidence?
45.The Court is of the opinion that the instant application is misconceived and devoid of any legal basis. It is frivolous and vexatious. Despite the Applicant being aware that it lost its appeal before the Court of appeal it nevertheless decided to undermine the Court of Appeal decision by making a second bite at the Cherry before this Court. There is no other way of describing the Applicant’s conduct other than abuse of the Court process. The court is thus satisfied that the Applicant’s instant application is an abuse of the court process. Such an application ought to be refused and dismissed with costs.( e ) Who shall bear costs of the application.
46.Although costs of an action or proceedings are at the discretion of the court, the general rule is that costs shall follow the event in accordance with the proviso to Section 27 of the Civil Procedure Act (Cap 21). Accordingly, the successful party or parties would ordinarily be awarded costs unless for ….reason the court directs otherwise. See Hussein Jienmohamed & son vs Twentische Overseas Trading Co Ltd  EA 287. In this case the court finds no good reason why the successful litigants should not be awarded costs of the application. Accordingly, costs of the application shall be awarded to the 1st, 3rd, 4th & 5th Defendants and the interested parties.
47.The upshot of the foregoing is that the court finds no merit in the Applicant’s application dated 05.05.2022. Accordingly, the Notice of Motion dated 05.05.2022 is hereby dismissed in its entirety with costs to the 1st, 3rd 4th & 5th defendants and the interested parties who opposed the application. It is so ordered.
RULING DELIVERED VIRTUALLY THIS 16TH DAY OF JANUARY,2023 In The Virtual Presence Of:Mohammed Amin holding brief for Sagana for the Plaintiff.Njoroge Regeru with James Wairoto & Cecil Kuyu for the 1st defendant.Jackline Njuguna for the 5th defendantPatrick Kiprop for the 1st to 5th Interested Parties.M/S Faith Kabora for the 6th Intended Interested Party.M/S Janet Kungu for the 3rd and 4th Defendants.Hon Justice P.m Njoroge –presiding JudgeHon. Lady Justice Grace Kemei-judgeHon. Justice Yuvinalis Angima-judg