[2006] KEHC 2868 (KLR)
The court found that the applicant had previously raised the same subject matter before Mutungi J, who dealt with it and pronounced a ruling. Therefore, the plea of res judicata applies, barring the applicant from reopening the same issue. The application to transfer the matter and for leave to file a replying...
Source-derived case information.
- Citation
- [2006] KEHC 2868 (KLR)
- Parties
- Plaintiff: Mburu Kimani; Respondent: Simon Kanyoko
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 672 of 2003
- Procedural Posture
- Civil Case / Ruling on Application to Transfer Matter and for Leave to File Replying Affidavit
- Outcome
- application dismissed
- Judges
- JL Osiemo
- Legal Topics
- Res Judicata, Transfer of Proceedings, Leave to File Affidavit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mburu Kimani
Plaintiff
Simon Kanyoko
Respondent
Procedural Posture
Civil Case / Ruling on Application to Transfer Matter and for Leave to File Replying Affidavit
Legal Issues
- 1 Whether the application to transfer the matter and for leave to file a replying affidavit is barred by the doctrine of res judicata.
- 2 Whether the applicant is entitled to have the matter heard by a different judge on the basis that the previous order was made by that judge.
Ratio Decidendi
The court found that the applicant had previously raised the same subject matter before Mutungi J, who dealt with it and pronounced a ruling. Therefore, the plea of res judicata applies, barring the applicant from reopening the same issue. The application to transfer the matter and for leave to file a replying affidavit was dismissed on this basis.
Court Disposition
application dismissed
Orders
- The applicant's application to transfer the matter and for leave to file a replying affidavit is dismissed.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
CIVIL CASE 672 OF 2003
MBURU KIMANI……………………………………….PLAINTIFF
VERSUS
SIMON KANYOKO…………………..…………….RESPONDENT
RULING
This matter came before me for hearing today but Mr. Machira applies to have the matter transferred to Visram J to hear the matter on the ground that the order intended to be extended to enable him put in replying affidavit was made by him.
The application was opposed by Mr. Njagi on the ground that a similar application was made before Mutungi J and was rejected. Counsel had applied for leave to file a replying affidavit to explain his failure to prosecute an earlier application. Mr. Njagi submitted that the issue of filing an affidavit to explain failure to prosecute the earlier application is resjudicate.
In reply Mr. Machira submitted that the matter is not resjudicate since the same has not been heard on merit.
Where a given matter becomes the subject of litigation in and adjudication by a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not except under (special circumstances) permit the same parties to open the same subject of litigation in respect of the same matter.
The applicant having raised the same subject matter before Mutungi J who dealt with it and pronounced a ruling, the plea of resjudicate applies. The applicant’s application is therefore dismissed.
Dated and delivered at Nairobi this 9th day of February 2006.
J.L.A. OSIEMO
JUDGE