[2002] KEHC 640 (KLR)
The court found that although the parties and subject matter in both suits are the same, the doctrine of res judicata does not strictly apply because the earlier judgment is under appeal and has not been conclusively determined. The court noted that the claim in the present suit could have been raised as a...
Source-derived case information.
- Citation
- [2002] KEHC 640 (KLR)
- Parties
- Plaintiff: Colorama Processing Lab Ltd; Defendant: Burham Gulam Hussein & Another
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 607 of 1991
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- Suit not struck out; ordered to be consolidated with pending appeal.
- Legal Topics
- Res Judicata, Preliminary Objection, Motor Vehicle Collision, Consolidation of Suits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Colorama Processing Lab Ltd
Plaintiff
Burham Gulam Hussein & Another
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the present suit is barred by the doctrine of res judicata under section 7 of the Civil Procedure Act.
- 2 Whether the claim in the current suit should have been raised as a counterclaim in the earlier suit.
- 3 Whether the suits should be consolidated pending the outcome of the appeal.
Ratio Decidendi
The court found that although the parties and subject matter in both suits are the same, the doctrine of res judicata does not strictly apply because the earlier judgment is under appeal and has not been conclusively determined. The court noted that the claim in the present suit could have been raised as a counterclaim in the earlier proceedings. To avoid multiplicity of proceedings and conflicting decisions, the court directed that the present suit be consolidated with the pending civil appeal (CA 51/92), and that the outcome of the appeal would determine the fate of the current claim. Costs were ordered to be in the cause.
Court Disposition
Suit not struck out; ordered to be consolidated with pending appeal.
Orders
- This suit is to be consolidated with Civil Appeal 51/92.
- The claim under this suit will remain pending the outcome of the appeal.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL CASE607 OF 1991
COLORAMA PROCESSING LAB LTD ………………. PLAINTIFF
VERSUS
BURHAM GULAM HUSSEIN & NOTHER……………..DEFENDANT
1. Running down action
2. Preliminary objection – Res Judicata
3. Section 7 civil procedure act
4. Plaintiff sues in HCCC 6707/91 for material loss Defendant sues in RMCC 7536a/91 now HCCC 5192 for
5. Not res judicate but could be considered as a counter claim
6. Suit consolidated and to be heard in CA 51/92
RULING
On a Preliminary Objection
On the 24th of September 1990 a motor vehicle collision occurred between two vehicles. One driver by the plaintiffs authorized driver and the other by the 2nd defendant and only authorized driver.
On 18. 1.91 (plaint undated) the plaintiff sued the 1st and 2nd defendants for material loss of its motor vehicle. Eleven years and one month later the suit was set down for hearing.
The defendant raised a preliminary objection that this present suit was Res Judicator.
The reasons being that a suit was filed in the Resident Magistrate’s court as No. 7536 A/91. IN the said suit the plaintiff was found to be 100% liable for the said accident. This finding had never been set aside nor overruled by a higher court.
In reply the advocate for the plaintiff stated that indeed there was a suit filed as RMCC 7536A/91. There was a default judgment entered. This was exparte. An application to set aside the said judgment and to set the suit for hearing was attempted but never succeeded. There is now an appeal CA 51/92 whereby it is awaiting determination.
The defendant argued that this suit is not res judicator. He admitted that the current suit was filed in December 1991 whilst the previous suit was filed earlier in September 1991.
I have had sight of the said Civil Appeal 51/92, which is yet to be admitted for hearing its appeal. (I cannot understand the proceedings of the lower court.)
The parties therein are the same. The subject maters are the same. The claim in this case could easily be a counter-claim in the previous case.
I would not term this suit as res judicator but I would though give the following directions that this suit be consolidated with civil appeal 51/92.
Whatever decision is taken in that appeal the claim under this suit would be pending.
These are my orders coasts in the cause.
Dated this 27th day of November 2002 at Nairobi.
M. Ang’awa
JUDGE.