[2008] KEHC 1431 (KLR)
The court found that the appellant's application dated 12th March 2008 sought substantially similar relief to that previously determined in the ruling of 20th December 2007, namely an injunction to restrain the respondent from dealing with goods removed from the appellant's house. The court noted that the appellant...
Source-derived case information.
- Citation
- [2008] KEHC 1431 (KLR)
- Parties
- Appellant: Amina Abdi Mumin; Respondent: Shariff Mohamed Omar
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 34 of 2008
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection to Injunction Application
- Outcome
- Application dismissed as res judicata; preliminary objection upheld.
- Legal Topics
- Res Judicata, Injunctions, Execution of Judgments
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Amina Abdi Mumin
Appellant
Shariff Mohamed Omar
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection to Injunction Application
Legal Issues
- 1 Whether the appellant's application for injunction is barred by the doctrine of res judicata.
- 2 Whether the issues raised in the current application were previously determined by the court.
- 3 Whether the appellant is attempting to circumvent prior court orders by filing a similar application.
Ratio Decidendi
The court found that the appellant's application dated 12th March 2008 sought substantially similar relief to that previously determined in the ruling of 20th December 2007, namely an injunction to restrain the respondent from dealing with goods removed from the appellant's house. The court noted that the appellant had failed to comply with the conditions set in the earlier ruling and was now attempting to circumvent those orders by filing a near-identical application. As the issues, parties, and subject matter were the same, the court held that the application was res judicata and constituted an abuse of process. Accordingly, the preliminary objection was upheld and the application was...
Court Disposition
Application dismissed as res judicata; preliminary objection upheld.
Orders
- The summons dated 12th March 2008 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA
Civil Appeal 34 of 2008
AMINA ABDI MUMIN ……………………………………..APPELLANT
VERSUS
SHARIFF MOHAMED OMAR ………………………….RESPONDENT
R U L I N G
Amina Abdi Mumin, the appellant herein, took out a summons dated 12th March 2008 in which she prayed for an order of injunction to restrain Shariff Mohamed Omar, the Respondent herein, from removing the goods proclaimed from the appellant’s house on 14th December 2007 pending the hearing and determination of this appeal. When served with the aforesaid summons, the Respondent filed a notice of preliminary objection dated 15th April 2008 to oppose the application. The preliminary objection had to be disposed of first before hearing the substance of the summons.
It is the submission of Mrs. Makone, learned advocate for the Respondent that the application is resjudicata. It is said that the issues raised herein had been heard, considered and determined in Mombasa H.C.C.A. No. 187 of 2007. Mr. Hassan, learned advocate for the appellant opposed the Preliminary Objection claiming it is a continuation of the attempts by the Respondent to evict the appellant. The learned advocate stated that the application in H.C.C.A. No. 187 of 2007 was for a return of the goods attached which this court gave conditions . The learned advocate stated that the conditions were too difficult for the Appellant to meet. It is said the Respondent attached the goods on 14th December 2007 while the ruling was pending for 20th December 2007, hence the appellant had no option but to take out these proceedings.
I have considered the submissions of both learned counsels. I have also perused the material placed before me. It is not in dispute that this court delivered its ruling on 20th December 2007 in respect of the summons dated 24th October 2007. In that summons, the appellant had sought for an order of injunction to restrain the Respondent from selling the good removed from the appellant’s house pending the hearing and determination of the appeal. In the end this court allowed the application on three conditions i.e.
(i) The appellant to deposit the arrears of rent at the rate of the rent before increase in Respondent’s advocate’s office.
(ii) Continue paying the monthly rent before increase to the Respondent’s advocate’s office.
(iii) To pay into a joint interest earning account in the names of the advocates of the amount of the increased rent.
In the current application, the appellant is seeking for an order
seeking to restrain the Respondent from removing goods allegedly proclaimed on 14. 12. 07. It is obvious that the application
was filed after this court had delivered its ruling of 20. 12. 2007. After
a careful consideration of the issues raised therein, I am convinced
that the appellant has attempted to circumvent the orders of this court
by filing a near similar application seeking for similar orders. It is apparent from the application that the appellant had failed to comply with the conditions set in the ruling delivered by this court on 20th December 2007. The issues raised are the same, the parties are the same and the dispute concerns the same subject matter. I am convinced the summons dated 12th March 2008 is res judicata. For the above reasons I uphold the Preliminary Objection by dismissing the application with costs to the Respondent.
Dated and delivered at Mombasa this 10th day of July 2008.
J.K. SERGON
J U D G E
In open court in the presence of Miss Matara h/b Hassan for Appellant and Munyithya for Respondent