[2010] KEHC 1986 (KLR)
The court found that the applicant had previously filed two separate applications seeking the same orders of substitution and stay of execution, both of which had been heard and dismissed on their merits. The applicant failed to disclose this history in the present application. The court held that the current...
Source-derived case information.
- Citation
- [2010] KEHC 1986 (KLR)
- Parties
- Appellant: Cyrus Gakuru Gitari; Respondent: Magondu Gakuru
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 27 of 2006
- Procedural Posture
- Civil Appeal / Ruling on Application for Substitution and Stay of Execution
- Outcome
- application dismissed as res judicata with costs to the respondent
- Judges
- J Karanja
- Legal Topics
- Res Judicata, Substitution of Parties, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cyrus Gakuru Gitari
Appellant
Magondu Gakuru
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Substitution and Stay of Execution
Legal Issues
- 1 Whether the application for substitution of the respondent and stay of execution is res judicata.
- 2 Whether the applicant is entitled to orders previously dismissed by the court.
Ratio Decidendi
The court found that the applicant had previously filed two separate applications seeking the same orders of substitution and stay of execution, both of which had been heard and dismissed on their merits. The applicant failed to disclose this history in the present application. The court held that the current application was res judicata, as the issues raised had already been conclusively determined between the same parties. Accordingly, the court dismissed the application with costs to the respondent, reaffirming the finality of its earlier decisions and the bar against re-litigation of the same matters.
Court Disposition
application dismissed as res judicata with costs to the respondent
Orders
- The application dated 24.2.2010 is dismissed as res judicata.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU Civil Appeal 27 of 2006
CYRUS GAKURU GITARI………………….……………..APPELLANT
VERSUS
MAGONDU GAKURU…….……………………….…….RESPONDENT
R U L I N G
The application dated 24. 2.2010 seeks the following:-
1. That the Honourable Court be pleased to substitute the name of the MAGONDU GAKURU with the name of his widow GRACE WATIRI MAGONDU or on the alternative (sic) and without prejudice to the above to declare the applicant herein as the sole Administrator of the Estate of his demised father GAKURU GITHAE.
2. That this Honourable Court be pleased to grant stay of execution of the order/judgment of 30. 12. 05 (Kerugoya Succession Cause No. 80 of 2004) or any other subsequent orders pending the hearing and determination of the appeal herein.
The 2nd prayer was the single prayer in the application dated 4th February, 2008 filed by J. Ndana Advocates on behalf of the applicant. The same was heard and the court delivered its ruling on 30. 10. 08 which ruling expressly dismissed the application on merit. That prayer was therefore Res judicata and it should not have been refiled.
A subsequent application was filed by P.N. Mugo and Company Advocates on 31. 8.09 seeking orders of substitution. The same was also heard and dismissed on 17. 2.2010. The applicant’s counsel subsequently filed the application dated 24. 2.2010 seeking the 2 orders that had been previously prayed for through the applications that had been dismissed earlier on. Indeed even in his supporting affidavit, the applicant does not allude to the fact that similar applications had been heard and dismissed by this court. I confirm that the court has heard the applications with similar prayers and dismissed both of them.
The issues were raised in the 2 other applications which were not struck out but dismissed by the court. This application is therefore Res Judicata and I dismiss it with costs to the Respondent.
W. KARANJA
JUDGE
Delivered, dated and signed this 24th of June 2010.
In the presence of:- (as per coram)
24/06/2010
Before W. Karanja J.
Mr. Mugo Kariuki for Applicant present
N/A for Respondent
W. KARANJA
JUDGE
Court:
Ruling delivered today in open court in presence of the above.
W. KARANJA
JUDGE
Court:
Mr. Mugo be supplied with copies of the proceedings and Ruling on payment of the requisite court fees.
W. KARANJA
JUDGE
24/06/2010