[2008] KEHC 1142 (KLR)
The court found that the Plaintiff failed to provide any evidence of other pending suits between the same parties over the same subject-matter in the Family Division. The pleadings did not demonstrate that the suit involved the distribution of a deceased person's estate. The court held that the preliminary objection...
Source-derived case information.
- Citation
- [2008] KEHC 1142 (KLR)
- Parties
- Plaintiff: Mburu Mwaura; Defendant: Margaret Wanjiru; Defendant: Mangu Investment Co. Ltd; Defendant: Kyanjau Farmers Co-operative Society
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 733 of 2005
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection and Application for Transfer
- Outcome
- Plaintiff's application for transfer refused with costs to the 1st Defendant.
- Legal Topics
- Preliminary Objection, Res Judicata, Abuse of Process, Transfer of Suit
- 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
Mburu Mwaura
Plaintiff
Margaret Wanjiru
Defendant
Mangu Investment Co. Ltd
Defendant
Kyanjau Farmers Co-operative Society
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection and Application for Transfer
Legal Issues
- 1 Whether the suit should be transferred to the Family Division on the basis that it involves distribution of a deceased person's estate.
- 2 Whether the suit is res judicata and thus an abuse of the court process.
Ratio Decidendi
The court found that the Plaintiff failed to provide any evidence of other pending suits between the same parties over the same subject-matter in the Family Division. The pleadings did not demonstrate that the suit involved the distribution of a deceased person's estate. The court held that the preliminary objection on res judicata could be determined by the current court regardless of the existence of other suits. Consequently, there was no basis for transferring the suit to the Family Division, and the Plaintiff's request was refused with costs to the 1st Defendant.
Court Disposition
Plaintiff's application for transfer refused with costs to the 1st Defendant.
Orders
- The request to transfer the suit to the Family Division is refused.
- Costs of the application awarded to the 1st Defendant.
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 733 of 2005
MBURU MWAURA ..........................................................................PLAINTIFF
V E R S U S
1. MARGARET WANJIRU
2. MANGU INVESTMENT CO. LTD
3. KYANJAU FARMERSCO-OPERATIVE SOCIETY........DEFENDANTS
R U L I N G
When this suit came up for substantive hearing on 22nd July, 2008, it emerged that the 1st Defendant had served the Plaintiff with a notice of preliminary objection to the suit dated 21st July, 2008. The objection was then set down for arguments on 16th October, 2008. On that date learned counsel for the Plaintiff stated that he was not ready to answer the preliminary objection because, he said, this suit involves distribution of the estate of a deceased person called BARBANAS MWAURA. He therefore requested that the suit be transferred to Family Division. He stated further that there are other suits between the same parties over the same subject-matter that are pending before the Family Division.
In opposing transfer to the Family Division, learned counsel for the 1st Defendant pointed out that the pleadings in this suit show clearly that this is a purely civil suit, and that it does not at all involve distribution of any deceased person’s estate. Counsel further stated that he was not aware of any other suit between the same parties over the subject-matter.
It was the duty of the learned counsel for the Plaintiff to place before the court evidence of existence of these other alleged suits between the same parties over the same subject-matter said to be pending before the Family Division. No such evidence was placed before the court. Not even case numbers were quoted.
The preliminary objection raised is that the present suit is res judicata and therefore an abuse of the process of the court. That is an issue that this court can deal with even if there existed other suits between the same parties over the same subject-matter. As I have already said, there is no evidence of the existence of these other suits. I therefore find no reason to transfer this suit to the Family Division. The request by learned counsel for the Plaintiff is therefore refused with costs to the 1st Defendant. It is so ordered.
DATED AT NAIROBI THIS 21ST OCTOBER, 2008
H. P. G. WAWERU
J U D G E
DELIVERED THIS 7TH DAY OF O