[2004] KEHC 133 (KLR)
The court found that the order made on 15th January 2004 by Visram J vacated the earlier orders of 16th July 2003, which had been granted ex parte and were based on an interlocutory judgment that was subsequently set aside. As a result, the orders previously relied upon by the plaintiffs/respondents no longer...
Source-derived case information.
- Citation
- [2004] KEHC 133 (KLR)
- Parties
- Plaintiff: John Oyawo Neko and three others; Defendant: Unity 45 Housing Co-operative Society Ltd.
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1256 of 2002
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection to Chamber Summons
- Outcome
- Application allowed; defendant at liberty to prosecute chamber summons.
- Legal Topics
- Res Judicata, Interlocutory Judgment, Setting Aside Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Oyawo Neko and three others
Plaintiff
Unity 45 Housing Co-operative Society Ltd.
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection to Chamber Summons
Legal Issues
- 1 Whether the defendant's chamber summons dated 12th January 2004 is properly before the court in light of previous orders granted on 16th July 2003.
- 2 Whether the application is res judicata due to subsisting orders.
- 3 Effect of the order made on 15th January 2004 vacating earlier orders.
Ratio Decidendi
The court found that the order made on 15th January 2004 by Visram J vacated the earlier orders of 16th July 2003, which had been granted ex parte and were based on an interlocutory judgment that was subsequently set aside. As a result, the orders previously relied upon by the plaintiffs/respondents no longer subsist. The defendant/applicant is therefore entitled to prosecute its chamber summons dated 12th January 2004, as the matter is not res judicata and the parties are at liberty to proceed to trial on the substantive issues in the suit.
Court Disposition
Application allowed; defendant at liberty to prosecute chamber summons.
Orders
- The defendant/applicant is at liberty to prosecute its chamber summons dated 12th January 2004.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 1256 of 2002
JOHN OYAWO NEKOAND THREE OTHERS……..................…….PLAINTIFFS
-versus-
UNITY 45 HOUSING CO-OPERATIVESOCIETY LTD. ….…………DEFENDANT
R U L I N G
The Defendant/Applicant has filed a Chamber Summons dated the 12th January 2004 which was to be heard, inter partieson the 17th February 2004.
At such hearing, Mr. Nyakianganafor the Plaintiffs/Respondents sought directions as to whether or not such application was properly before the Court arguing that the orders it seeks have already been granted in a similar application on the 16th July 2003 by NyamuJand as such order are still subsisting, the subject application is res judicata.
Mr. Koge for the Defendant/Applicant in reply contended that the Orders of the 16th July last were pursuant to an Interlocutory Judgment entered on the 5th July 2003 and were subsequently vacated by Visram J on the 15th January 2004 following the Plaintiffs’ successful application setting aside the Interlocutory Judgment.
Having perused both Orders in conjunction with the record, I am satisfied that the Order of the 15th January 2004 vacated the earlier ones of the 16th July 2003 the later having in any event been granted ex parte pending, in my view, formal proof or hearing inter parties thereby allowing the parties to go to trial on the issues in this suit. Pending trial the Defendant/Applicant is at liberty to prosecute its said application of the 12th January 2004.
Dated and delivered at Nairobi this 24th day of February 2004.
P. Kihara Kariuki
Ag. Judge