[2018] KEHC 4221 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

MISC.CIVIL APPLICATION NO. 24 OF 2018

COUNTY GOVERNMENT OF KAKAMEGA.....................APPLICANT

-VERSUS-

FELISTERS MUHAMBE MING'AFU........................1ST RESPONDENT

LUGARI DISTRICT HOSPITAL................................2ND RESPONDENT

MINISTRY OF HEALTH.............................................3RD RESPONDENT

ATTORNEY GENERAL...............................................4TH RESPONDENT

RULING

[1] The Notice of Motion dated 9 March 2018 was filed herein by the County Government of Kakamega pursuant to Sections 1A, 1B, 3A and 18(1)(b)(ii) of the Civil Procedure Act, Chapter 21 of the Laws of Kenya; and Order 51 Rule 1 of the Civil Procedure Rules, 2010. It seeks orders that the Court be pleased to transfer Eldoret CMCC No. 971 of 2016: Felistus Muhambe Mung'afu vs. Lugari District Hospital and 3 Others to the Chief Magistrate's Court in Kakamega for hearing and determination; and that the costs of the application be provided for.

[2] The application was premised on the ground that the Plaintiff's claim in Eldoret CMCC No. 971 of 2016 is for, inter alia, damages against the Applicant herein for injuries and loss allegedly suffered following her operation in the 2nd Respondent Hospital; and that it was admitted in the said suit that the 2nd Respondent is a hospital located in and carrying on its business within Kakamega County, where the Applicant as well as the 2nd Respondent's witnesses reside and carry on business. It was further the contention of the Applicant that given the foregoing scenario, it would only be just and expedient to have the suit transferred to Kakamega Chief Magistrate's Court for hearing and determination.

[3] The 1st Respondent, Felistus Muhambe Mung'afu, opposed the application. In her Replying Affidavit sworn on 20 June 2018, she averred, inter alia, that the issue of jurisdiction has already been raised before the Chief Magistrate's Court and a determination made thereon by the Chief Magistrate on 31 January 2018. That averment was not refuted by the Applicant. In the premises, it is manifest that the issue of jurisdiction of the Chief Magistrate to hear the matter is res judicata, for Section 7 of the Civil Procedure Act provides that:

“No Court shall try any suit or issue in which the matter 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…and has been heard and finally decided by such Court.”

[4] Needless to say that the doctrine of res judicata applies to interlocutory decisions as well. Hence, in Uhuru Highway Development Ltd vs. Central Bank of Kenya & 2 Others) Civil Appeal No. 36 of 1996), the Court of Appeal made this point thus:

"There is not one case cited to show that an application in a suit once decided by courts of competent jurisdiction can be filed once again for rehearing. This shows only one intention on the part of the legislature in India and our Civil Procedure Act. That is to say, there must be an end to applications of a similar nature; that is to say further, wider principles of res judicata apply to applications within the suit. If that was not the intention we can imagine that the courts could and would be inundated by new applications filed after the original one was dismissed. There must be an end to interlocutory applications as much as there ought to be an end to litigation..."

[5]In the premises, the Chief Magistrate having pronounced himself on that matter of his jurisdiction to hear and determineCMCC No. 971 of 2016,the Applicant could only make an approach to this Court by way of interlocutory appeal if need be; but not by way of a similar application raising the very issue that was determined by the Chief Magistrate. I would accordingly dismiss this application with costs.

It is so ordered.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 13TH DAY OF SEPTEMBER, 2018

OLGA SEWE

JUDGE