[2020] KEHC 1658 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KITUI

HCC. NO.1 OF 2019

1. ARIDSUN CONTRACTORS LIMITED

2. KATUNGATE CONTRACTORS LIMITED

3. SYANO ROADS & BRIDGES COMPANY LIMITED

4. KONZA WORKS CONSTRUCTION & ENGINEERING LIMITED

5. NELLY KAVUU MUTISYAT/A KIVUI GENERAL SUPPLIERS AND CONTRACTORS...PLAINTIFFS

VERSUS

COUNTY GOVERNMENT OF KITUI..............................................................................................DEFENDANT

R U L I N G

1. The Plaintiffs have sued the Defendant for breach of contract and have pleaded they were contracted to offer various services to the Defendant after winning the respective tenders to supply services which ranged from constructions of various roads within Kitui County, Construction of drifts to facilitate movements across Twa River and Kilonzi River. The Plaintiff’s claim that they delivered the services but were not paid and hence this suit for specific performance and special damages for delayed payments.

2. The Defendant in its pleadings alleged that the Plaintiffs failed to perform the works assigned to them to the required standard and within the stipulated time. It also pleaded that the Plaintiffs’ suit was res-judicata because the matter had be adjudicated through Kitui High Court Judicial Review No.23 of 2018.

3. The Defendant then took up the plea of res-judicata and filed a Notice of Preliminary Objection dated 2nd October, 2019 in that regard.

4. After filing the Notice of a Preliminary Objection the Defendant filed submissions on the Preliminary Objection on 16th July, 2020 and it appears that the Plaintiffs were served because on 15th September 2020 they also filed submissions in response and opposed the Preliminary Objection.

5. The matter was placed before this court on 16th September, 2020 when this court directed the Defendant to avail the decision which was the subject of its Preliminary Objection through a Supplementary Affidavit.

6. However on 14th October, 2020, the Defendant through counsel appeared and told this court that it had chose not to file any Supplementary Affidavit and was comfortable with the submissions filed.

7. The Defendant has submitted that its Preliminary Objection is based on the decision of Hon. Justice L.N.Mutende delivered inJudicial Review No.23 of 2018 and averred that the decision settled the dispute over payment of money owed by the Defendant to the Plaintiff. It further claims that the decision was delivered on 31st January, 2019 and that the decision in their view was final and having adjudicated over the issues of non payment the same matter cannot be re-litigated again in view of clear provisions of Section 7 of Civil Procedure Act and the doctrine of Res Judicata.

8. The Plaintiffs have opposed the plea of res judicata and claimed that the issues before the court in Judicial Review No.23 of 2018 were fundamentally different from the current suit. They contend that the doctrine of res judicata cannot apply in this suit.

9. The doctrine of res-judicata is embodied in Section 7 of the Civil Procedure Act (Cap 21 Laws of Kenya). The doctrine implies that once a matter between the same parties over same facts has been adjudicated by a competent court, the matter cannot be re-litigated again because of the need to have a finality in litigation and bring matters to a rest.

10. When a plea of res judicata is raised, a court looks carefully at the facts/issues and the decision claimed to have settled the issues in question in order to satisfy itself that indeed the issues are the same and have been fully adjudicated upon by a decision reached. For a court to come to that conclusion it has to go through the pleadings of the previous suit and the instant suit and look at whether the decision tendered finally settled the dispute. It is therefore incumbent upon the party raising the plea ofres judicata to supply or tender evidence before court to enable court determine if the doctrine is applicable.

11. In this matter, the Defendant has made a general plea of res judicata and this court for good measure asked the counsel for the defendant to avail evidence that shows that the issues raised in this suit were infact the same raised by the same parties in the Judicial Review matter for which this court rendered itself. The Defendant however for reasons best known to itself chose to rely on the submissions which I find insufficient in so far on the fact/pleadings and the decision in Judicial Review No.3 of 2018 are concern.

In the premises this court finds that in the interest of judicial time, and in the absence of pleadings and the decision in Judicial Review No.23 of 2018 I will not delve into the Preliminary Objection dated 2nd October, 2018. The same in my view in its form is unsustainable and is disallowed.

Dated, SignedandDeliveredatKituithis9thday of November, 2020.

R. K. LIMO

JUDGE