[2025] KEHC 2706 (KLR)
The court found that the application for review and stay was essentially identical to a previous application that had already been heard and determined on its merits. The court held that the principle of res judicata barred the current application, as it sought to reintroduce issues already settled. The court...
Source-derived case information.
- Citation
- [2025] KEHC 2706 (KLR)
- Parties
- Appellant: Balozi Housing Cooperative Society Limited; Respondent: Florence K Kamandu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 17 of 2019
- Procedural Posture
- Civil Appeal / Ruling on Application for Review and Stay After Dismissal of Appeal
- Outcome
- application dismissed with costs
- Judges
- NW Sifuna
- Legal Topics
- Res Judicata, Review of Court Orders, Reinstatement of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Balozi Housing Cooperative Society Limited
Appellant
Florence K Kamandu
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Review and Stay After Dismissal of Appeal
Legal Issues
- 1 Whether the application for review and stay is barred by the principle of res judicata.
- 2 Whether the court can reinstate an appeal previously dismissed and declined for reinstatement.
- 3 Whether the application constitutes an abuse of the court process.
Ratio Decidendi
The court found that the application for review and stay was essentially identical to a previous application that had already been heard and determined on its merits. The court held that the principle of res judicata barred the current application, as it sought to reintroduce issues already settled. The court further held that allowing the application would amount to the court sitting on appeal over its own ruling, which is impermissible. The application was therefore dismissed as lacking merit and constituting an abuse of the court process.
Court Disposition
application dismissed with costs
Orders
- The application dated 22nd October 2024 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
25 paragraphs
Balozi Housing Cooperative Society Limited v Kamandu (Civil Appeal 17 of 2019) [2025] KEHC 2706 (KLR) (Civ) (6 March 2025) (Ruling)
Neutral citation: [2025] KEHC 2706 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Civil
Civil Appeal 17 of 2019
NW Sifuna, J
March 6, 2025
Between
Balozi Housing Cooperative Society Limited
Appellant
and
Florence K Kamandu
Respondent
Ruling
1. This ruling is on the Appellant’s motion dated 22nd October 2024. The same which relates to this the Appeal herein, is supported by the Supporting Affidavit of Monica W. Ndung’u sworn on 10th October 2024.
2. The Appeal was dismissed by Sergon J, on 7th October 2022; under the provisions of Order 42 Rule 35 (2) of the Civil Procedure Rules. Thereafter the Appellant filed an Application for stay of that dismissal order, and also sought reinstatement of the Appeal.
3. That Application was dated 12th January 2024. The same which was opposed by the Respondent, was heard by Ongeri J and a ruling was delivered on its merits, on 24th May 2024 dismissing the said Application.
4. The Appellant despite having been aggrieved by that ruling, did not Appeal it, and instead filed the instant Application; seeking review of that ruling and also a stay of that dismissal order. The effect of the sought review is the reinstatement of the Appeal. A prayer that was declined in the said ruling of 24th May 2024 (Ongeri, J).
5. I hold that there is remarkable similarity or even sameness in the two Applications. In the sense that in both, the Court has to effectively reinstate the Appeal and also allow the Appellant to file a Record of Appeal.
6. A Record of Appeal cannot be filed in a dismissed Appeal. Therefore, for a Record to be filed, the Appeal has to be alive or resurrected if it was dismissed.
7. This is a Court of equity and its equitable duty and the duty to uphold the law cannot be drowned in the craft of draftsmanship. I hold that the principle of res judicata is not just confined to suits, but also to applications.
8. This instant Application is a clever scheme to sneak back into this Court through the backdoor, an Application that was already heard and determined on merits. This is akin to this Court siting on Appeal on its own ruling. This is unacceptable.
9. This Application therefore not only lacks merit, but is also an abuse of the court process as it is a mischievous one intended to defeat the application of the law. It therefore fails and is hereby dismissed with costs.
DATED AND DELIVERED AT NAIROBI ON THIS 6TH DAY MARCH 2025. PROF (DR) NIXON SIFUNAJUDGE