[2016] KEELC 844 (KLR)
The court held that for the doctrine of res judicata to apply, the previous suit must have been heard and finally determined by a competent court. In this case, the previous suit was dismissed for want of prosecution, meaning the substantive issues were never heard or decided on their merits. Therefore, the present...
Source-derived case information.
- Citation
- [2016] KEELC 844 (KLR)
- Parties
- Plaintiff: Charles Merishia; Plaintiff: Abraham M. Limakwang (Suing as Administrator of the Estate of Kochulem Amoywal); Plaintiff: Daniel R. Nguriapus (Suing as Administrator of the estate of Kabeli Moler Korinyang); Defendant: Petro Kalungokor
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Land Case 139 of 2013
- Procedural Posture
- Land Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection overruled
- Judges
- EO Obaga
- Legal Topics
- Res Judicata, Dismissal for Want of Prosecution, Preliminary Objection, Finality of Litigation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Merishia
Plaintiff
Abraham M. Limakwang (Suing as Administrator of the Estate of Kochulem Amoywal)
Plaintiff
Daniel R. Nguriapus (Suing as Administrator of the estate of Kabeli Moler Korinyang)
Plaintiff
Petro Kalungokor
Defendant
Procedural Posture
Land Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the present suit is barred by the doctrine of res judicata due to a previous suit dismissed for want of prosecution.
- 2 Whether dismissal for want of prosecution constitutes a final determination on the merits under Section 7 of the Civil Procedure Act.
Ratio Decidendi
The court held that for the doctrine of res judicata to apply, the previous suit must have been heard and finally determined by a competent court. In this case, the previous suit was dismissed for want of prosecution, meaning the substantive issues were never heard or decided on their merits. Therefore, the present suit is not barred by res judicata. The preliminary objection raised by the Defendant was found to lack merit and was accordingly overruled, with costs awarded to the Plaintiffs.
Court Disposition
preliminary objection overruled
Orders
- The preliminary objection is overruled with costs to the Plaintiffs.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENNVIRONMENT AND LAND COURT
AT KITALE
LAND CASE NO. 139 OF 2013
CHARLES MERISHIA
ABRAHAM M. LIMAKWANG (Suing as Administrators
of the Estate of Kochulem Amoywal)
DANIEL R. NGURIAPUS (Suing as Administrator of the
estate of Kabeli Moler Korinyang)...............................................PLAINTIFFS
VERSUS
PETRO KALUNGOKOR....................................................................DEFENDANT
R U L I N G
1. A preliminary objection was taken on behalf of the Defendant on the ground that this suit is res judicata. M/s Nasike for the Defendant argued that there was a suit which was filed in the year 2000 touching on the same subject matter as in the present suit. The suit was Kitale HCCC No. 146 of 2000 between Kuchulem Amoywal & Another – Vs- Petro Kalungorokor. This suit was dismissed for want of prosecution on 27/6/2012.
2. The preliminary objection was opposed by M/s Arunga for the Plaintiffs who argued that the previous suit was not heard on merits and as such the present suit cannot be res judicata.
3. The principle of res judicata is founded on Section 7 of the Civil Procedure Act which provides as follows:-
“No court shall try any suit or issue in which a matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court” . Underlining mine.
4. Section 7 of the Civil Procedure Act is very clear. A suit can only be res judicata if a previous suit has been heard and determined by a competent court. The rationale behind the principle of res judicata is that there has to be an end to litigation. A litigant ought not to be vexed if a matter or issue has been decided in a previous suit.
5. In the instant case, the previous suit was dismissed for want of prosecution. The issues in that suit were not determined on the merits as no hearing took place and a decision made thereon. This case cannot therefore be res judicata. I find that the preliminary objection has no merits. The same is hereby overruled with costs to the Plaintiffs.
It is so ordered.
Dated, signed and delivered at Kitale on this 16th day of May 2016.
E. OBAGA
JUDGE
In the presence of M/S Arunga for Plaintiff
Mr Pukah for Defendant
Court Assistant – Isabellah
E. OBAGA
JUDGE
16/5/16