[1994] KEHC 64 (KLR)
The court held that while a suit dismissed under Order XVI rule 5 of the Civil Procedure Rules is not res judicata because it was not determined on the merits, the plaintiff is nonetheless barred from bringing a fresh suit on the same cause of action. This is because such conduct amounts to an abuse of the process...
Source-derived case information.
- Citation
- [1994] KEHC 64 (KLR)
- Parties
- Plaintiff: Kamau Tichu; Defendant: The Director of Settlement, Ministry of Lands and Housing; Defendant: Ikere Gitau
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 347 of 1990
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Strike Out Second Defendant
- Outcome
- Application granted; 2nd Defendant struck out; costs to the 2nd Defendant.
- Legal Topics
- Res Judicata, Abuse of Process, Dismissal for Non Attendance, Order Xvi Rule 5, Order Xvi Rule 6
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kamau Tichu
Plaintiff
The Director of Settlement, Ministry of Lands and Housing
Defendant
Ikere Gitau
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Strike Out Second Defendant
Legal Issues
- 1 Whether the suit against the 2nd Defendant is res judicata due to prior dismissal of a similar suit.
- 2 Whether the suit constitutes an abuse of the process of the court under the Civil Procedure Rules.
- 3 Whether a plaintiff whose suit was dismissed under Order XVI rule 5 can bring a fresh suit.
Ratio Decidendi
The court held that while a suit dismissed under Order XVI rule 5 of the Civil Procedure Rules is not res judicata because it was not determined on the merits, the plaintiff is nonetheless barred from bringing a fresh suit on the same cause of action. This is because such conduct amounts to an abuse of the process of the court. The rationale is that the plaintiff had an opportunity to prosecute the earlier suit but failed to do so, and the law's policy is to ensure matters are determined expeditiously while evidence and witnesses are available. Allowing the plaintiff to relitigate would undermine the finality of litigation and reward indolence, contrary to procedural rules and the...
Court Disposition
Application granted; 2nd Defendant struck out; costs to the 2nd Defendant.
Orders
- The name of the 2nd Defendant/Respondent, Ikere Gitau, is struck out from the suit.
- Costs of the application to be paid by the applicants in the suit, to be taxed if not agreed upon.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISC. APPLICATION NO. 347 OF 1990
KAMAU TICHU ..............................................................................................................................PLAINTIFF
versus
THE DIRECTOR OF SETTLEMENT, MINISTRY OF LANDSAND HOUSING .....................................................DEFENDANT
RULING
On 30th March 1993, by an order of the court of the same date IKERE GITAU was joined in this suit as the second Defendant/Respondent. It has since transpired that the applicants in the suit had earlier sued him under NAI HCCC No.1727 of 1985 claiming the same reliefs as herein. The suit was dimissed pursuant to the provisions of O.XVI rule 5 Civil Procedure Rules. A subsequent application for the revival of the suit was dismissed because the Applicaaant did not attend court on the date the application was posted to come for a heariTnhge. 2nd Respondent(Defendant) herein now applies that his name be struck out on the ground that the suit is an abuse of the process of the court and, also, that it is res judicata.
Mr Kerugara for the Applicant in the suit does not think this suit is res judicata. In his view the matter has not been adjudicated upon on the merits.
O.XVI rule 6 Civil Procedure Rules seems to suggest that a plaintiff whose suit has been dismissed under O.XVI rule 5 Civil Procedure Rules, has no right of bringing a fresh suit.
The reason does not appear to me to be res judicata, but perhaps estoppel, or that bringing a fresh suit will amount to an abuse of the process of the court. Clearly a suit dismissed under O.XVI rule 5 Civil Procedure Rules has not been considered on the merits. Consequently, to my mind, res judicata should not be invoked to bar a subsequent suit between the same parties and or the same cause of action.
The Plaintiff or Applicant in the subsequent suit must have been barred on the ground that it will be an abuse of the process of court to bring a fresh suit. The basis is clear. The party has abused an earlier opportunity to ventilate his cause of action in court. He should not be allowed to come to court once more. The earlier suit having been dismissed following the laid down procedure, the Plaintiff was called upon to offer any explanation as to the delay in presenting the cause but failed to do so. He should consider himself to blameI.t should be recalled that the policy of the law is that a suit must be presented on the basis of a given timetable.The law stipulates what should be done in the event that a litigant does not follow the timetable. The opposite party has the liberty to move, the court by an appropriate application to dismiss the suit. The hearing of the application must, of necessity, be inter partes. However where the suing party is served and does not attend the court on the date and place the matter is fixed to come for a hearing the court is at liberty tomake orders, ex parte. That is what happened to NAI HCCC. No.1727 of 1985. To let this case to proceed will be tantamount to rewarding the Applicant without basis or proper basis.
I have found support in a passage in the Book A.I.R. Commentaries on the Code of Civil Procedure, 6th Ed. (1957) (Vol.1) by V.V. Chitaley and S. Appu Rao at p.439. It reads:
"Where the former suit was tried according to the procedure
then in force, the mere fact that such procedure waas summary
does not affect the finality of the decision."
Apart from the foregoing there is a more fundamental reason why this suit must be dismissed as against the Applicant (2nd Defendant). A long time has passed and there is possibly no likelihood of witnesses being traced. The issue has not been raised by the affected party, however, the reason why there is a timetable, for the prosecution of suits is that matters be determined while witnesses can be found or can readily be found to obviate prejudice.
In the above circumstances, I am constrained to grant the application, strike out the name of the 2nd Defendant/Respondent and order that costs of this application be paid by the applicants in the suit to be taxed if not agreed upon.Orders accordingly.
Dated at Nairobi and delivered this 9th day of June 1994.
S.E.O. BOSIRE
JUDGE