[2009] KEHC 1363 (KLR)
The court found that the application to set aside the decree was res judicata because the applicant had previously filed two applications seeking the same relief, both of which were dismissed by a competent court. The orders sought in the current application were substantially identical to those previously...
Source-derived case information.
- Citation
- [2009] KEHC 1363 (KLR)
- Parties
- Plaintiff: George Rombo; Defendant: Jones Gibson Mwangi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 464 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Decree
- Outcome
- application dismissed as res judicata
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Res Judicata, Setting Aside Decree, Eviction Orders, Fraudulent Dispossession
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Rombo
Plaintiff
Jones Gibson Mwangi
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Decree
Legal Issues
- 1 Whether the application to set aside the decree is res judicata.
- 2 Whether the court has jurisdiction to revisit an issue already determined.
Ratio Decidendi
The court found that the application to set aside the decree was res judicata because the applicant had previously filed two applications seeking the same relief, both of which were dismissed by a competent court. The orders sought in the current application were substantially identical to those previously determined. Applying Section 7 of the Civil Procedure Act, the court held that the matter had been conclusively addressed and determined, leaving nothing further to be adjudicated. Consequently, the court lacked jurisdiction to revisit the issue, and the application was dismissed with costs to the plaintiff/respondent.
Court Disposition
application dismissed as res judicata
Orders
- The application is dismissed with costs to the plaintiff/respondent.
Full Case Text
Judgment text and source record
19 paragraphs
GEORGE ROMBO ……..……….....….. PLAINTIFF/RESPONDENT
VS.
JONES GIBSON MWANGI ……….…. DEFENDANT/APPLICANT
RULING
This is an application by the defendant Jones Gibson Mwangi essentially seeking an order that the court vacates the decree made on 5th June 2002. This application dated 9th October, 2008 is supported by several grounds set out on the face of the application and also an affidavit sworn by the defendant/applicant.
It is important to set out the basic order sought by the applicant herein and this appears as No.1 of the prayers sought by the applicant. It reads as follows:
“1. That this court be pleased to set aside in total the decree referred to hereabove for review due to its gross irregularity and illegality of being given on a day contrary to the one ordered by this honourable court of 5th June, 2002 from the court proceedings of 24th April 2002 which decree is annexed hereto.”
He has solely relied on his grounds and the affidavit annexed thereto. The application is opposed by the respondent on the ground that it is res judicata.
That submission is based on the fact that the applicant herein filed two applications on 9th July, 2003 and 6th October, 2003 seeking essentially the same orders. On 22nd March, 2004, Ochieng J dismissed the two applications. In particular, in the Notice of Motion dated 9th July, 2003, the applicant sought an order to set aside the judgment and the order he now seeks to set aside. That being the case, therefore this court should declare that, the matter is res judicata and dismiss the application.
The proceedings herein were recorded by Kubo J who reserved the ruling to 7th May, 2009 but the learned judge retired before he delivered the said ruling.
I have taken some time to go through the record and in particular the ruling by Ocheing J in respect of the two applications that he handled. In the application dated 9th July, 2003, prayer No.1 reads as follows:
“This honourable court may be pleased to vacate eviction orders granted in favour of the plaintiff/respondent herein and set aside the judgment thereto, and order full hearing of this case inter-partes.”
The learned judge heard and wrote a detailed and well reasoned ruling in respect of that application and dismissed the same. The wording of that order sought by the applicant then, and now, are more or less the same, however different the approach may have been. I am persuaded that what Justice Ochieng addressed then and what is being sought by the applicant in the present application, are one and the same orders.
Going by the provisions of Section 7 of the Civil Procedure Act which applies to both suits and application, I have no doubt in my mind that the issue has been conclusively addressed and determined and there is nothing remaining to be determined. I therefore find that the present application is res judicata and as such this court lacks jurisdiction to revisit the same.
One last observation I must make going by the record that I have read is that, the defendant/applicant is an extremely litigious person. One can only guess that is because of the subject matter herein which is a house he claims he was fraudulently dispossessed. That notwithstanding, litigation must come to an end. It follows therefore that the application must be and is hereby dismissed with costs to the plaintiff/respondent.
Orders accordingly.
Dated, signed and delivered at Nairobi this 26th day of October, 2009
A. MBOGHOLI MSAGHA
JUDGE