[2005] KEHC 798 (KLR)
The court found that the documents relied upon by the applicant to support the plea of res judicata related to an application for an order to sign mutation forms, which was unrelated to the issues before the court in the present suit. Furthermore, the referenced suit, Kiambu RMCC No. 69 of 2001, was withdrawn before...
Source-derived case information.
- Citation
- [2005] KEHC 798 (KLR)
- Parties
- Plaintiff: David Githinji Njuguna; Defendant: Muchiri Ndiha
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 655 of 2002
- Procedural Posture
- Civil Suit / Ruling on Application to Strike Out Suit
- Outcome
- application dismissed with costs
- Legal Topics
- Striking Out of Suit, Res Judicata, Limitation of Actions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
David Githinji Njuguna
Plaintiff
Muchiri Ndiha
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Strike Out Suit
Legal Issues
- 1 Whether the suit should be struck out as res judicata.
- 2 Whether the reliefs sought are barred by the Limitation of Actions Act.
Ratio Decidendi
The court found that the documents relied upon by the applicant to support the plea of res judicata related to an application for an order to sign mutation forms, which was unrelated to the issues before the court in the present suit. Furthermore, the referenced suit, Kiambu RMCC No. 69 of 2001, was withdrawn before the current suit was filed. Therefore, there was no evidence that the present suit was res judicata. The court also emphasized that its summary powers to strike out a suit should only be exercised in very clear cases, which was not the situation here. As a result, the application to strike out the suit was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application dated 7th January, 2005 is dismissed with costs.
Full Case Text
Judgment text and source record
10 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYAAT NAIROBICivil Suit 655 of 2002
DAVID GITHINJI NJUGUNA ……………………………….………….. PLAINTIFF
VERSUS
MUCHIRI NDIHA ……………………...……………………………… DEFENDANTRULING
This is an application to strike out the suit under Order 1 Rule 13 (1) (d) on the grounds, among others, that the suit is res judicata, and that the reliefs sought are defeasible by virtue of the Limitations of Action Act, Cap 22.
The deposition in support of the application says that the issues in trial here have been determined in Kiambu SPM Miscellaneous Application No. 50 of 2000 where the parties were exactly the same as here. However, the documents annexed to support this claim relate to an application for an order to sign mutation forms. It has nothing to do with the issues before this Court. Secondly, Kiambu RMCC No. 69 of 2001, also referred to in the application, was withdrawn from that Court, before this suit was filed. Accordingly, there is no evidence before this Court that this suit is res judicata.
A court’s summary powers should not be invoked except in very clear situations. This is not one of those cases where I can exercise my discretion to strike it out. Accordingly, the application dated 7th January, 2005 is dismissed with costs.Dated and delivered at Nairobi this 30th day of November, 2005.
ALNASHIR VISRAM
JUDGE