[2015] KEHC 4582 (KLR)
The court held that the doctrine of res judicata does not apply to cases where a previous suit was dismissed for want of prosecution, as such a dismissal is not a determination on the merits of the case. The applicant is therefore not precluded from instituting a fresh suit on the same cause of action, provided that...
Source-derived case information.
- Citation
- [2015] KEHC 4582 (KLR)
- Parties
- Applicant: M N M; Respondent: J N M
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 71 of 2013
- Procedural Posture
- Originating Summons / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- DN Musyoka
- Legal Topics
- Matrimonial Property Division, Res Judicata, Dismissal for Want of Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
M N M
Applicant
J N M
Respondent
Procedural Posture
Originating Summons / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit is barred by the doctrine of res judicata due to a previous dismissal for want of prosecution.
- 2 Whether dismissal of a previous suit for want of prosecution precludes the applicant from filing a fresh suit on the same cause of action.
Ratio Decidendi
The court held that the doctrine of res judicata does not apply to cases where a previous suit was dismissed for want of prosecution, as such a dismissal is not a determination on the merits of the case. The applicant is therefore not precluded from instituting a fresh suit on the same cause of action, provided that the suit is not barred by limitation statutes. The preliminary objection raised by the respondent was found to be without merit and was dismissed, allowing the applicant to proceed with her motion for directions.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection dated 10th June 2014 is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
HCCC NO. 71 OF 2013
M N M…………………..……APPLICANT
VERSUS
J N M…………………..………RESPONDENT
RULING
1. The suit herein commenced on 7th November 2013 by way of an originating summons dated 17th October 2013. It is a suit for division of matrimonial property.
2. The defendant appeared on 16th December 2013, and filed a reply by way of an affidavit sworn on 11th December 2013.
3. A motion is filed on 29th March 2014 by the plaintiff for directions under Order 37 rules 16, 17 and 18 of the Civil Procedure Rules.
4. To this motion the respondent filed an affidavit in reply, sworn a 10th June 2014. His case is that a similar suit between the same parties on the same issues, being HCCC No. 52 of 2006 (OS), had been dismissed on 25th July 2013 for want of prosecution. He argues that the matter is now res judicata.
5. He simultaneously filed a notice of preliminary objection dated 10th June 2014 to urge that the application dated 29th March 2014 and the entire suit are in competent and res judicata.
6. It was directed on 12th June 2014 that the preliminary objection would be disposed of by way of written submissions. Both parties dutifully filed their submissions, the respondent on 20th June 2014 and the applicant on 24th July 2014.
7. The respondent’s submissions minor the averments in his replying affidavit of 10th June 2014 and the preliminary objection of even date.
8. The applicant’s submissions dated 23rd July 2014 are more elaborate. She cites ample authority – Kuloba J. in judicial Hints on Civil Procedure, Law Africa pages 43 and 44 and Bureau Veritas (K) Limited –vs- Kenya Bureau of Standards and 4 others(2010) eKLR - to break her argument that the dismissal of a suit for want of prosecution does not present the plaintiff with a fair accomplish. They can still thereafter strict, subject to the law on limitation of actions, a fresh action.
9. I find merit in the arguments advised by the applicant in her submissions. Consequently, I hold that the objection raised by the respondent cannot stand. I thereby hereby decline to uphold the objection and proceed to dismiss it with no order as to costs. The applicant is at liberty to have the Motion dated 29th March 2014 listed for disposal.
DATED, SIGNED and DELIVERED at NAIROBI this 29TH DAY OF MAY, 2015.
W. MUSYOKA
JUDGE
In the presence of ……………………………. advocate for the plaintiff.
In the presence of …………………………. advocate for the defendant.