[2008] KEHC 1859 (KLR)
The court found that the plaintiff was not present when the suit was called out and did not provide a truthful or sufficient explanation for his absence. The affidavit evidence contradicted the plaintiff's claim of being present. Additionally, the plaintiff failed to disclose the existence of several previous cases...
Source-derived case information.
- Citation
- [2008] KEHC 1859 (KLR)
- Parties
- Plaintiff: Gitau Kinyanjui Alias Peter Gitau Kinyanjui; Defendant: Jane Wairimu Makumi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1963 of 2007
- Procedural Posture
- Civil Case / Ruling on Application to Reinstate Suit Dismissed for Non Attendance
- Outcome
- application dismissed; suit remains dismissed with costs to the defendant
- Legal Topics
- Dismissal for Non Attendance, Application for Reinstatement, Res Judicata, Non Disclosure of Material Facts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gitau Kinyanjui Alias Peter Gitau Kinyanjui
Plaintiff
Jane Wairimu Makumi
Defendant
Procedural Posture
Civil Case / Ruling on Application to Reinstate Suit Dismissed for Non Attendance
Legal Issues
- 1 Whether the suit should be reinstated after dismissal for non-attendance by the plaintiff.
- 2 Whether the plaintiff provided a sufficient explanation for his absence.
- 3 Whether the doctrine of res judicata applies due to previous cases between the parties.
Ratio Decidendi
The court found that the plaintiff was not present when the suit was called out and did not provide a truthful or sufficient explanation for his absence. The affidavit evidence contradicted the plaintiff's claim of being present. Additionally, the plaintiff failed to disclose the existence of several previous cases involving the same subject matter and parties, raising the issue of res judicata. The court concluded that the plaintiff had not been candid and that there was no basis to reinstate the suit. Consequently, the application to reinstate the suit was declined and the suit remained dismissed with costs to the defendant.
Court Disposition
application dismissed; suit remains dismissed with costs to the defendant
Orders
- The application to reinstate the suit is dismissed.
- The suit remains dismissed for non-attendance.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 1963 of 2007
GITAU KINYANJUI Alias
PETER GITAU KINYANJUI ……………….….....…… PLAINTIFF
VERSUS
JANE WAIRIMU MAKUMI …………………………. DEFENDANT
RULING
TO REINSTATE SUIT DISMISSED FORNON ATTENDANCE BY PLAINTIFF TO COURT17 MARCH 2008
1: Background
1. On the day set for hearing, the suit was called out and the plaintiff – herein Gitau Kinyanjui alia Peter Gitau Kinyanjui was absent.
2. The defendant was present through her advocate and did not admit any part of the claim. The suit was dismissed under Order IXB r 4 Civil Procedure Rules for non attendance to court.
3. The plaintiff then filed this present application dated the 17 March 2008 to reinstate the case for hearing.
II: Grounds
4. The plaintiff alleges that on the day the matter was called out he had gone to answer a call of nature as he had a running stomach.
5. This was categorically denied by one Nancy Njoki Kimani who was present at the time the case came for hearing to court. She never saw the plaintiff at all on the day in question. She was present when the case was called out outside court at 11. 30 a.m. and at no time was the plaintiff present.
6 On the day the case was to be heard the advocate for the defendant was to raise issues that the case was Res judicata to the Kiambu CCMCC No.71/71 between the parties that has been heard and determined.
7. From the affidavit of Nancy Njoki Kimani, the annextures of the plaintiff applicants there seems to be several cases filed. The cases are:
Kiambu CMCC71/71
Kikuyu CMCC 98/03
Kiambu PMCC 91/05
Kiambu SPM 168/05
8. There has been non disclosure by the plaintiff/applicant of these existing cases.
9. On the plaintiff/applicants affidavit he alleges he was a minor when the property was registered under his own name as sole proprietor.
Opinion
10. The plaintiff/applicant has not been truthful. He was not present when this suit was called out. He never attended this court at any time.
11. I decline to reinstate this suit. The same is dismissed with costs to the respondent defendant.
DATED THIS 9TH DAY OF JULY 2008 AT NAIROBI.
M.A. ANG’AWA
JUDGE
Peter Gitau Kinyanjui plaintiff/applicant in person – present
S.N. Njenga instructed by N. Njenga & Co. Advocates for the defendant/Respondent – present.