[2012] KEHC 4255 (KLR)

[2012] KEHC 4255 (KLR)

The court found that the applicant's Notice of Motion dated 20th September 2011 sought substantially the same orders as a previous application that had already been dismissed, and no appeal or review had been sought. The court held that the matter was res judicata and that the applicant's failure to disclose the...

Source-derived case information.

Citation
[2012] KEHC 4255 (KLR)
Parties
Applicant: G.N.K; Respondent: P.M.K
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
16 February 2012
Case Number
Civil Suit 51 of 2011
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection and Motion to Strike Out
Outcome
Application and suit struck out as incompetent; costs awarded to respondent.
Judges
D Schofield
Legal Topics
Res Judicata, Abuse of Court Process, Married Womens Property Act, Dissolution of Marriage
Source Language
english
Family and Children Civil Procedure Res Judicata Abuse of Court Process Married Womens Property Act Dissolution of Marriage

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Summary, issues, holding and outcome

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Parties

G.N.K

Applicant

P.M.K

Respondent

Procedural Posture

Miscellaneous Application / Ruling on Preliminary Objection and Motion to Strike Out

Legal Issues

  1. 1 Whether the Notice of Motion dated 20th September 2011 is res judicata.
  2. 2 Whether the application constitutes an abuse of the court process.
  3. 3 Whether the applicant, as a divorced spouse, can invoke Section 17 of the Married Women’s Property Act 1882.

Ratio Decidendi

The court found that the applicant's Notice of Motion dated 20th September 2011 sought substantially the same orders as a previous application that had already been dismissed, and no appeal or review had been sought. The court held that the matter was res judicata and that the applicant's failure to disclose the existence of a similar pending application amounted to an abuse of the court process. Furthermore, the court determined that the applicant, whose marriage to the respondent had been dissolved over two years prior to filing the suit, could not invoke Section 17 of the Married Women’s Property Act 1882. The suit was therefore incompetent and could not be sustained.

Court Disposition

Application and suit struck out as incompetent; costs awarded to respondent.

Orders

  • The Notice of Motion dated 20th September 2011 is struck out.
  • The Originating Summons dated 20th September 2011 is struck out.