[2020] KEHC 9577 (KLR)
The court found that the issues in the present suit had already been determined in HCC NO 45 OF 2011, which involved the same parties and subject matter. The previous ruling had stayed this suit pending the outcome of the earlier suit. With the conclusion and delivery of judgment in HCC NO 45 OF 2011, there was no...
Source-derived case information.
- Citation
- [2020] KEHC 9577 (KLR)
- Parties
- Plaintiff: High Flyer Services and Publishers Limited; Defendant: Peter Gichuki Mwangi t/a High Flyer Publishers
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 107 of 2013
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal or Compromise of Suit
- Outcome
- Suit marked as compromised; costs awarded to defendant.
- Judges
- MM Kasango
- Legal Topics
- Res Judicata, Compromise of Suit, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
High Flyer Services and Publishers Limited
Plaintiff
Peter Gichuki Mwangi t/a High Flyer Publishers
Defendant
Procedural Posture
Civil Case / Ruling on Application for Dismissal or Compromise of Suit
Legal Issues
- 1 Whether the suit should be dismissed or marked as compromised in light of the judgment in HCC NO 45 OF 2011.
- 2 Whether the defendant is entitled to costs of the suit and the application.
Ratio Decidendi
The court found that the issues in the present suit had already been determined in HCC NO 45 OF 2011, which involved the same parties and subject matter. The previous ruling had stayed this suit pending the outcome of the earlier suit. With the conclusion and delivery of judgment in HCC NO 45 OF 2011, there was no longer any basis for the present suit to remain on record. The court therefore marked the suit as compromised and awarded costs to the defendant, including costs of the application. The absence of opposition from the plaintiff further supported the grant of the orders sought by the defendant.
Court Disposition
Suit marked as compromised; costs awarded to defendant.
Orders
- This suit is hereby marked as compromised.
- The defendant is granted costs of this suit and costs of the chamber summons dated 23rd January 2020.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND TAX DIVISION
CIVIL CASE NO. 107 OF 2013
HIGH FLYER SERVICES AND PUBLISHERS LIMITED.................PLAINTIFF
- VERSUS –
PETER GICHUKI MWANGI T/A
HIGH FLYER PUBLISHERS...............................................................DEFENDANT
RULING
1. By the chamber summons dated 23rd January 2020 is filed by the defendant. The defendant has prayed for an order of the dismissal of this suit with costs and in alternative that this suit be marked as compromised in view of the judgment issued in the case number HCC NO 45 OF 2011. The application was not opposed by the plaintiff and although served with a hearing notice the plaintiff did not attend court, on 12th March 2020, when the application was heard.
2. The background of this matter is that, after filing this suit, the plaintiff filed an application on 19th March 2013. By that application the plaintiff sought various injunctive orders, amongst which he sought, to restrain the defendant from publishing, promoting, selling, or supplying books as High Flyer Series. That application was heard by Justice Farah S. Amin. The Learned judge delivered a Ruling to that application on 5th October 2016. By that Ruling the learned judge upheld the preliminary objection raised by the defendant. The pertinent part of the judge’s Ruling is as follows:
“The plaintiff has failed to establish its case on a prima facie basis. This suit cannot proceed until the earlier suit with the same parties and the same subject matter has been herd and determined or alternatively is consolidated with this suit. No such application has been made.”
3. The other suit the learned judge referred to, in that Ruling, is HCC NO 45 OF 2011. Earlier in the judge’s Ruling the judge did note that this suit was filed when the plaintiff failed to obtain interlocutory injunction in HCC 45 OF 2011. The learned judge, by her Ruling, stayed this suit pending the determination of HCC NO 45 OF 2011. That case, HCC NO 45 OF 2011, was concluded when the court delivered its judgment on 20th December 2019. It follows that since the issues in this suit were determined when that judgment was delivered that there no basis of continuing to have this suit on record. The application has merit and will be granted with costs.
4. The orders of the court are that:
a) This suit is hereby marked as compromised.
b) The defendant is granted costs of this suit and costs of the chamber summons dated 23rd January 2020
DATED, SIGNED and DELIVERED at NAIROBI this 5th day of MAY, 2020.
MARY KASANGO
JUDGE
ORDER
In view of the measures restricting court operations due to the COVID-19 pandemic and in light of the Gazette Notice No 3137 of 17th April 2020 and further parties having been notified of the virtual delivery of this decision, this decision is hereby virtually delivered this 5th day of May, 2020.
MARY KASANGO
JUDGE