[2002] KEHC 32 (KLR)
The court found that the application for leave to cite the respondents for contempt was based on the same facts as an earlier application that had already been dismissed by Justice Ouna. The court held that the present application was res judicata and could not succeed. The court also noted that there were other...
Source-derived case information.
- Citation
- [2002] KEHC 32 (KLR)
- Parties
- Plaintiff: Ali Mahfoudh Abubakar; Defendant: Hamoud Mohamed; Defendant: Feisal Barakat; Defendant: Hussein Barakat; Defendant: Municipal Council of Malindi
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Case 11 of 2001
- Procedural Posture
- Civil Case / Ruling on Application for Leave to Cite for Contempt and Application for Leave to Appeal
- Outcome
- application dismissed with costs; leave to appeal refused
- Legal Topics
- Contempt of Court, Res Judicata, Leave to Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ali Mahfoudh Abubakar
Plaintiff
Hamoud Mohamed
Defendant
Feisal Barakat
Defendant
Hussein Barakat
Defendant
Municipal Council of Malindi
Defendant
Procedural Posture
Civil Case / Ruling on Application for Leave to Cite for Contempt and Application for Leave to Appeal
Legal Issues
- 1 Whether the application for leave to cite the respondents for contempt is res judicata the earlier application dismissed by Justice Ouna.
- 2 Whether the applicant is entitled to leave to appeal against the present ruling.
Ratio Decidendi
The court found that the application for leave to cite the respondents for contempt was based on the same facts as an earlier application that had already been dismissed by Justice Ouna. The court held that the present application was res judicata and could not succeed. The court also noted that there were other valid grounds for refusing the application but found it unnecessary to consider them in light of the res judicata finding. The application was accordingly dismissed with costs. Further, the court considered the oral application for leave to appeal and found it to have no merit, refusing the application for leave to appeal.
Court Disposition
application dismissed with costs; leave to appeal refused
Orders
- The application for leave to cite the respondents for contempt is dismissed with costs to the respondents.
- The application for leave to appeal is refused.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MALINDI
Civil Case 11 of 2001
ALI MAHFOUDH ABUBAKAR………...….PLAINTIFF
VERSUS
1. HAMOUD MOHAMED
2. FEISAL BARAKAT
3. HUSSEIN BARAKAT
4. MUNICIPAL COUNCIL OF MALINDI…….......…….DEFENDANT
RULING
The applicant seeks leave to cite the respondents for contempt. He is supposed to come exparte but he served the contemnors. He relies on facts which he relied on in a similar application which was dismissed by Justice Ouna on 15. 3.2002. Justice Ouna in his ruling found that the facts before him upon which the application was based were insufficient to support a case upon which to grant leave. He refused the application. The applicant filed a fresh application basing the same upon those earlier facts of the same alleged breach. There was an objection on the ground that this application is Res Judicata the earlier one. I have considered the application, the arguments from all the three counsel for the various parties. I have examined the affidavits in support and in opposition. It is my ruling that this application is Res Judicata the one argued on 15th March, 2002. It cannot succeed therefore.
There are other grounds raised against the application which are quite valid and upon which the application would be refused. I see no need of considering them.
I accordingly dismiss the application with costs to the respondents.
Dated and delivered at Malindi this 21st day of May 2002.
D.A.ONYANCHA
JUDGE
Mr.Kienzo: I apply for leave to appeal against todays ruling in even the applicant wishes to appeal.
Ruling
I have considered the application for leave to appeal. I hold that it ahs no merit. The application is refused.
D.A.ONYANCHA.
JUDGE