[2006] KEHC 293 (KLR)
The court found that the previous application for review was dismissed on a technicality and not on the merits, and therefore the present application was not barred by res judicata. However, the court held that the defendant had not advanced sufficient new grounds or evidence to justify reviewing the earlier ruling...
Source-derived case information.
- Citation
- [2006] KEHC 293 (KLR)
- Parties
- Plaintiff: Joseph Mwangi Munyua & 3 Others; Defendant: George Mwai Mburu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 983 of 2005
- Procedural Posture
- Civil Suit / Ruling on Application for Review
- Outcome
- application dismissed with costs to the respondents
- Judges
- ARM Visram
- Legal Topics
- Review of Court Orders, Interlocutory Injunctions, Allocation of Land, Res Judicata
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Mwangi Munyua & 3 Others
Plaintiff
George Mwai Mburu
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Review
Legal Issues
- 1 Whether the application for review is barred by res judicata.
- 2 Whether new and sufficient grounds exist to warrant review of the court's previous orders restraining the defendant from constructing on the suit plot.
- 3 Whether the corrected allocation letter entitles the defendant to proceed with construction.
Ratio Decidendi
The court found that the previous application for review was dismissed on a technicality and not on the merits, and therefore the present application was not barred by res judicata. However, the court held that the defendant had not advanced sufficient new grounds or evidence to justify reviewing the earlier ruling and orders restraining him from constructing on the disputed plot. The original ruling was based on multiple factors, not solely the absence of the allocation letter. The court determined that the matter should proceed to full trial for a final determination, rather than being resolved at the interlocutory stage through review.
Court Disposition
application dismissed with costs to the respondents
Orders
- The application for review is dismissed.
- Costs awarded to the respondents.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
AT TH EHIGH COURT IN NAIROBI (MILIMANI LAW COURTS )
CIVIL SUIT 983 OF 2005
JOSEPH MWANGI MUNYUA & 3 OTHERS ……….....… PLAINTIFF
VERSUS
GEORGE MWAI MBURU ……………....………………. DEFENDANT
RULING
This is an application for review under Order 44 of the Civil Procedure Rules, based on the ground that a new and important matter had since arisen, and for other sufficient reason.
On 1st December, 2005, this Court handed down a brief ruling restraining the Defendant from constructing a building on the suit plot (Buru Buru Phase 1, Block 74) until the hearing and determination of this suit. The Court found, in that Ruling, and at that time, that the Plaintiffs had made out a prima facie case with a probability of success, and were likely to suffer irreparable injury if restraining Orders were not issued. An additional reason for granting those Orders was that the Defendant had not demonstrated that he had the legal right to build on the suit plot (Block 74). Indeed, the letter of allocation exhibited by the Defendant related to Plot 73, and not 74.
The Defendant now says, in this application for review, that the “corrected” allocation letter to Plot 74 shows that the suit plot has been allocated to him giving him the right to build on the same. Indeed, he filed an application dated 21st July, 2006 for review, but the same was dismissed on technicality, in that the Order sought to be reviewed, had not been annexed to the application. The Respondents (Plaintiffs) to this application have submitted before this Court, that that application having been dismissed on 16th October, 2006, the present application is res judicata, and should be struck out. The Respondents are clearly wrong in that argument. The previous application was not heard and dismissed on merit, but simply on technicality for want of form and failure to annex the Order sought to be reviewed. Accordingly, I find that this application is not res judicata, and that Defendant is fully entitled to be heard on the same.
However, having said that, I do not find that there are sufficient new grounds or evidence advanced to review the Ruling and Orders of this Court made on 1st December, 2005. That Ruling was not based only on the omission by the Defendant to annex the letter of allocation to the suit land. It was based on several other factors, and reasons that are outlined in the said Ruling. I see no reason to review the same at this time. I believe this is a proper case to go to full trial before a final decision is made to “allow” the Defendant to proceed with his construction on the disputed plot, especially in the face of strong arguments presented against such construction.
Accordingly, I dismiss this application with costs to the Respondents.
Dated and delivered at Nairobi this 19th day of December, 2006.
ALNASHIR VISRAM
JUDGE