[2004] KEHC 2513 (KLR)
The court found that the issues regarding garnishee proceedings between the plaintiff and the second defendant had already been determined in HCC No. 833/1999, rendering the present suit res judicata. Consequently, the plaint disclosed no cause of action against the second defendant. The ex parte orders previously...
Source-derived case information.
- Citation
- [2004] KEHC 2513 (KLR)
- Parties
- Plaintiff: Gikandi Ngibuini; Defendant: Eagle Aviation Limited; Defendant: Ethiopian Airlines S.C.
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 15 of 2002
- Procedural Posture
- Civil Suit / Ruling on Application to Set Aside Ex Parte Orders and Strike Out Plaint
- Outcome
- Plaint struck out as against the second defendant; ex parte orders set aside; application dismissed with costs to the respondent.
- Legal Topics
- Res Judicata, Garnishee Proceedings, Striking Out Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gikandi Ngibuini
Plaintiff
Eagle Aviation Limited
Defendant
Ethiopian Airlines S.C.
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Set Aside Ex Parte Orders and Strike Out Plaint
Legal Issues
- 1 Whether the plaintiff's suit is res judicata in light of previous garnishee proceedings in HCC No. 833/1999.
- 2 Whether the plaint discloses a cause of action against the second defendant.
- 3 Whether ex parte orders granted to the plaintiff should be set aside.
Ratio Decidendi
The court found that the issues regarding garnishee proceedings between the plaintiff and the second defendant had already been determined in HCC No. 833/1999, rendering the present suit res judicata. Consequently, the plaint disclosed no cause of action against the second defendant. The ex parte orders previously granted to the plaintiff were set aside, and the application was dismissed with costs to the respondent. The court emphasized the finality of litigation and the need to prevent abuse of court process by re-litigating matters already decided.
Court Disposition
Plaint struck out as against the second defendant; ex parte orders set aside; application dismissed with costs to the respondent.
Orders
- The plaint as against the second defendant is struck out with costs.
- Ex parte orders granted under Chamber Summons dated 15th January, 2001 are set aside.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
HCCC CIVIL SUIT NUMBER 15 OF 2002
GIKANDI NGIBUINI …………………………………………………PLAINTIFF
VERSUS
1. EAGLE AVIATION LIMITED
2. ETHIOPIAN AIRLINES S.C………………………………….DEFENDANTS
R U L I N G
On 15th January, 2002 the plaintiff filed this application claiming declaration that he was entitled to hold certain money in his hands pending the payment of his legal fees (Applicant/Plaintiff is an advocate) and that there be an order staying proceedings and execution under HCC No. 833/1999. In his supporting affidavit he set out various suits where he is entitled to fees. He also annexed bills for taxation between Client/Advocate. He claimed that there was a threat of garnishee proceedings against him by second Defendant against some money deposited by the first Defendant with him. He stated that the fees amount to about 7 million and sought the orders pending the finalization of the taxation to ascertain his entitlement.
On 7th march, 2002 the 2nd Defendant applied for orders that orders granted to the Plaintiff on 19th February, 2002 be set aside. And that the plaintiff’s claim in the plaint filed herein was res judicata and an abuse of court process. It is said that on 18th October, 2001 in HCC No. 833/1999 Garnishee orders were made against the Plaintiff. This suit was filed on 15th January, 2002 when that order was already issued in HCC 833 /1999.
I have perused the material laid before the court. I am bound to conclude that when this suit was filed the issues regarding Garnishee proceedings against the Plaintiff had become res judicata a between second Defendant and the plaintiff.
I therefore find that the plaint discloses no cause of action between Plaintiff and Second Defendant and the same is struck out with costs. Orders granted exparte under Chamber Summons dated the 15th January, 2001 are hereby set aside. The application has no merit and the same is hereby dismissed.
The applicant shall pay the costs of the application.
Dated this 15th day of July, 2004.
JOYCE KHAMINWA
JUDGE