[2011] KEHC 3072 (KLR)
The court found that the issues raised in the application had already been determined in a previous ruling by Justice Sergon, where it was held that the respondent did not receive the judgment sum and was cleared of wrongdoing by the Advocate's Complaints Commission. The court held that the matter was res judicata,...
Source-derived case information.
- Citation
- [2011] KEHC 3072 (KLR)
- Parties
- Applicant: Abdallah Mwakamsha; Respondent: Hamza Jiwaji t/a Hamza Jiwaji & Co. Advocate
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 37 of 2011
- Procedural Posture
- Civil Case / Ruling on Application for Review
- Outcome
- application dismissed with costs to the respondent
- Judges
- AI Tullu
- Legal Topics
- Res Judicata, Functus Officio, Review of Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abdallah Mwakamsha
Applicant
Hamza Jiwaji t/a Hamza Jiwaji & Co. Advocate
Respondent
Procedural Posture
Civil Case / Ruling on Application for Review
Legal Issues
- 1 Whether the application is barred by the doctrine of res judicata.
- 2 Whether the High Court has jurisdiction to review or revisit a decision by a judge of coordinate jurisdiction.
- 3 Whether the application constitutes an abuse of court process.
Ratio Decidendi
The court found that the issues raised in the application had already been determined in a previous ruling by Justice Sergon, where it was held that the respondent did not receive the judgment sum and was cleared of wrongdoing by the Advocate's Complaints Commission. The court held that the matter was res judicata, as it had been conclusively determined between the same parties, and that the High Court was functus officio, lacking jurisdiction to revisit or review the decision of a judge of coordinate jurisdiction. The application was therefore dismissed as an abuse of the court process.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application dated 4th February 2011 is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL CASE NO. 37 OF 2011
ABDALLAH MWAKAMSHA …………………….......................................……….APPLICANT
VERSUS
HAMZA JIWAJIT/A HAMZA JIWAJI & CO.ADVOCATE...............................RESPONDENT
R U L I N G
I have considered the application dated 4th February, 2011 and the affidavit in Reply sworn by the Defendant on 25th February 2011.
In the said Replying Affidavit, I have seen a Ruling made by the Hon. Justice J. K. Sergon on 4th October, 2006. In the said ruling the learned Judge made the following finding:-
“ …………………………………….
There is evidence that the applicant had lodged a complaint before the Advocate’s Complaints Commission sometimes in 1994 and the commission came to the conclusion that Mr. Hamza Jiwaji did not receive the judgment sum in a letter addressed to him and copies to Hamza Jiwaji dated 24th June, 1994. The Complaints Commission in effect cleared Hamza Jiwaji Advocate of any wrong doing under section 60 (1) of the Advocates Act (cap 16 laws of Kenya). The position now remaining is the same that the Respondent did not receive the judgment money.The end result is that the motion is struck out and dismissed for being incompetent and without merit.`”
In light of the aforesaid ruling, I do hold that the issues herein are resjudicata and this application is an abuse of the court Process. It is high time that the applicant closes this chapter in his life unless he wishes to go to the Court of Appeal. The High Court is really now functus officio and cannot help him
In the Ruling referred hereinabove, the court was particularly unhappy with the harassment of the Advocate being the Applicant.
Applicant should carefully read the said ruling. His application to review the said findings and to allow the evidence contained in correspondence with Atkinson Cleasly & Satchu Advocates was refused by Justice Sergon on 26. 06. 2007. It is really the end of the road for this matter. In any case, I have no jurisdiction to sit on appeal over another Judge with co-ordinate jurisdiction.
I therefore have no other option but to dismiss the application which I hereby do with costs to the Respondent.
Right of appeal explained.
Dated and delivered this 11th March 2011
M. K. IBRAHIM
JUDGE