[2004] KEHC 231 (KLR)
The court held that the previous suit in the Eldama Ravine Resident Magistrate’s Court was struck out due to deficiencies in the pleadings and not finally decided on the merits. Therefore, the doctrine of res judicata does not apply, as there was no final adjudication between the parties on the substantive issues....
Source-derived case information.
- Citation
- [2004] KEHC 231 (KLR)
- Parties
- Plaintiff: Francis Kariuki Kinja; Defendant: Firoze Construction Company Ltd
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 198 of 2003
- Procedural Posture
- Civil Suit / Ruling on Application to Strike Out Plaint
- Outcome
- Defendant's application to strike out the plaint dismissed with costs.
- Legal Topics
- Res Judicata, Striking Out Pleadings, Workmen Compensation, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Kariuki Kinja
Plaintiff
Firoze Construction Company Ltd
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Strike Out Plaint
Legal Issues
- 1 Whether the present suit is res judicata in view of the prior suit between the same parties that was struck out.
- 2 Whether the striking out of the previous suit constitutes a final determination on the merits, barring the present suit.
- 3 Whether the plaint should be struck out as an abuse of court process.
Ratio Decidendi
The court held that the previous suit in the Eldama Ravine Resident Magistrate’s Court was struck out due to deficiencies in the pleadings and not finally decided on the merits. Therefore, the doctrine of res judicata does not apply, as there was no final adjudication between the parties on the substantive issues. The striking out of the earlier suit did not bar the plaintiff from bringing a fresh suit based on the same facts, especially where the legal basis of the claim differs. Consequently, the defendant’s application to strike out the plaint on grounds of res judicata and abuse of process was dismissed with costs.
Court Disposition
Defendant's application to strike out the plaint dismissed with costs.
Orders
- The defendant's application dated 22/6/2004 is dismissed with costs to the plaintiff.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
Civil Suit 198 of 2003
FRANCIS KARIUKI KINJA……………………………...…………..…....PLAINTIFF
VERSUS
FIROZE CONSTRUCTION COMPANY LTD………………………DEFENDANT
RULING
The Defendant filed an application by way of Chamber Summons dated 22/6/2004 praying that the plaint herein be struck out on the grounds that:-
(a) It was res judicata in view of Eldama Ravine Resident Magistrate’s Court Civil Case No. 17 of 2003 between the same parties which had been determined.
(b) It would prejudice, embarrass and delay the fair trial of the action.
(c) It is otherwise an abuse of the court process.
The aforesaid suit in Eldama Ravine Resident Magistrate’s court was fully heard, both parties having testified. The plaintiff therein had sued the Defendant for compensation for injuries which he received when he was attacked by robbers as he guarded the Defendant’s premises on 13/12/2002. The court found that the Defendant had taken reasonable steps to provide a safe system of work for the plaintiff but found that the Plaintiff’s claim to be incompetent and struck it out.
The plaintiff then proceeded to proceeded to file this suit through a different firm of advocates but based on the same facts as in the aforesaid case.
Mr. Karanja for the respondent opposed the said application, saying that the earlier suit was not dismissed but was struck out. He further submitted that the claim in the earlier suit was under workmen’s Compensation Act while the present claim was under the common law.
Mr. Karanja cited NGONI-MATENGO CO-OPERATIVE MARKETING UNION LTD VS ALIMO HAMED OSMAN [1959] E.A. 477 where it was held that when an appeal is not properly constituted the court ought to strike it out rather than dismiss the same.
In that case, the Court of Appeal held that the phrase “dismissed” implied that a competent appeal had been disposed of while the phrase “strike out” implied that there was no proper appeal capable of being disposed of. If I understood Mr. Karanja well, the main thrust of his submission was that since the suit in Eldama Ravine court was incompetent, there was no res before the court capable of becoming judicata.
Mr. Karanja also cited the THE CODE OF CIVIL PROCEDURE 1957 edition, Pg. 434 which quotes Lord Romilly in JENKINS VS ROBERTSON [1867] L.R. 1 HL 117 as having stated:-
“Res judicata, by its very words means a matter upon which the court has exercised its judicial mind and has come to the conclusion that one side is right and has pronounced a decision accordingly. In my opinion res judicata signifies that the court has, after argument and consideration, come to a decision on a contested matter.”
Section 7 of the Civil Procedure Act states as follows:-
“No court shall try any suit or issue in which the matter directly and substantially 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, litigation under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”
Regarding the said suit, the trial magistrate observed as follows:-
“In the plaint filed by the plaintiff through his lawyer Mr. Chebii there are no particulars of negligence. The Plaintiff claims in the plaint general damages under the Workman Compensation Act Cap 236. Well, here its not clear what the Plaintiff wants from the court.”
And then in the last paragraph he stated:-
“All in all this is a case where the Plaintiff makes prayers of general damages under the Workman Compensation Act a prayer to compute as there is no evidence to do the calculation of the same. I proceed to strike out the plaintiff’s suit.”
Even though this last paragraph is not quite clear, it is evident that the trial magistrate was unable to award general damages due to deficiency in the pleadings and therefore he struck out the Plaintiff’s suit.
In my view, the suit was not finally decided and so the matter is not res judicata. I therefore dismiss the Defendant’s application with costs.
DATED, SIGNED & DELIVERED at Nakuru this 22nd day of November, 2004.
DANIEL MUSINGA
AG. JUDGE
22/11/2004