[2017] KEHC 5071 (KLR)
The High Court found that while the application for injunction was res judicata due to a previous dismissal in an earlier suit involving the same parties and issues, the lower court erred in dismissing the entire suit at the interlocutory stage without addressing the substantive merits. The court held that the...
Source-derived case information.
- Citation
- [2017] KEHC 5071 (KLR)
- Parties
- Appellant: Church of God in East Africa (K) (Suing through Right Reverend Dr. Byrum A. Makoha, Rev. James Obunde, Jeremiah Maenye & William Shimanyula, Trustees of the Church); Respondent: Reuben Akoyo & 7 Others
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 171 of 2010
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal_allowed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Res Judicata, Interlocutory Injunctions, Jurisdiction of Courts, Reinstatement of Suit, Church Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Church of God in East Africa (K) (Suing through Right Reverend Dr. Byrum A. Makoha, Rev. James Obunde, Jeremiah Maenye & William Shimanyula, Trustees of the Church)
Appellant
Reuben Akoyo & 7 Others
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the dismissal of the suit on grounds of res judicata at the interlocutory stage was proper.
- 2 Whether the lower court addressed the substantive issues on merit before dismissing the suit.
- 3 Whether the suit should be reinstated for a full hearing on the merits.
Ratio Decidendi
The High Court found that while the application for injunction was res judicata due to a previous dismissal in an earlier suit involving the same parties and issues, the lower court erred in dismissing the entire suit at the interlocutory stage without addressing the substantive merits. The court held that the capacity of the parties and the underlying dispute were triable issues that required a full hearing. Dismissing the suit at this stage would deny the parties their right to be heard and to have the substantive issues determined on merit. The court therefore allowed the appeal, ordered the reinstatement of the suit, and directed that it be heard and determined on its merits by the...
Court Disposition
appeal_allowed
Orders
- The appeal is allowed.
- The suit in the lower court is reinstated for hearing and final determination on the merits.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NO. 171 OF 2010
CHURCH OF GOD IN EAST AFRICA (K) (Suing through
RightReveredDr. ByrumA. Makoha,Rev. James
Obunde,Jeremiah Maenye& WilliamShimanyula,
Trustee of the Church................................APPELLANT
VERSUS
REUBEN AKOYO & 7 OTHERS...............RESPONDENT
Being an appeal in Civil Case No. 8003 of 2009 from the Ruling of Senior
PrincipalMagistrate Milimani Hon. A.K. Ndungu dated 16th April, 2010)
JUDGMENT
On 16th April, 2010 the lower court held that the plaintiff’s application which sought an injunction be dismissed for reasons of it being res judicata. The defendant’s had raised a preliminary objection on the ground that the lower court lacked jurisdiction in view of the constitution of the plaintiff’s church. In that ruling there was also mention of CMCC No. 2340 of 2008.
Alongside the dismissal order in that ruling, the court dismissed the suit with costs to the defendant. I have looked at the pleadings in CMCC No. 8003 of 2009 and CMCC No. 2340 of 2008. In both cases, the prayers are more or less identical and there is evidence that an application for injunction in the previous suit, that is CMCC No. 2340 of 2008, was dismissed.
Clearly therefore, any address to the court relating to the parties based on the same facts and seeking the same orders would rightly be considered res judicata. However, an interlocutory application can never dispose of all the issues in a suit without the hearing, and therefore without going to the merits of the case in lower court, I find that the ruling leading to this appeal did not address the substantive issue on merit.
The capacity of the parties is a triable issue and to lock out parties at interlocutory stage, is to drive them out of the seat of judgment without a hearing.
In the circumstances, this appeal must be allowed. I find that the application for injunction was resjudicata but the suit must be reinstated and be subjected to a full hearing to address the issues on merit. I also note that this is a church dispute where relationships of the parties may survive a dispute beyond the court and therefore, alternative dispute resolution should have been applied in this case.
However, I leave that to the parties and the court that may be seized of this matter. The lower court file shall now be transmitted to the lower court for hearing and final determination.
Parties shall bear their own costs.
Dated, signed and delivered at Nairobi this 26th Day of April 2017.
A. MBOGHOLI MSAGHA
JUDGE