[2018] KEELC 4436 (KLR)
The court found that the defendant's application was a repeat of previously dismissed applications seeking the same orders, and that no new or sufficient reasons were provided for his absence in court on the relevant dates. The court held that the matter was res judicata, as the issues raised had already been...
Source-derived case information.
- Citation
- [2018] KEELC 4436 (KLR)
- Parties
- Plaintiff: Mbwele Muoki; Plaintiff: Dennis Muoki; Defendant: Justus Mutie Kioko
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 60 of 2010
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Previous Applications
- Outcome
- application dismissed with costs
- Judges
- OA Angote
- Legal Topics
- Setting Aside Orders, Reinstatement of Application, Res Judicata, Abuse of Court Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mbwele Muoki
Plaintiff
Dennis Muoki
Plaintiff
Justus Mutie Kioko
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Previous Applications
Legal Issues
- 1 Whether the application to set aside the orders dismissing the defendant's previous applications should be granted.
- 2 Whether the current application is res judicata and an abuse of the court process.
Ratio Decidendi
The court found that the defendant's application was a repeat of previously dismissed applications seeking the same orders, and that no new or sufficient reasons were provided for his absence in court on the relevant dates. The court held that the matter was res judicata, as the issues raised had already been determined in a prior ruling, and that entertaining the application would amount to an abuse of the court process. The appropriate remedy for the defendant, if dissatisfied with the earlier ruling, was to file an appeal rather than to file repetitive applications. Consequently, the application was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application dated 26th April, 2017 is dismissed with costs to the plaintiffs.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MACHAKOS
ELC. CASE NO. 60 OF 2010
MBWELE MUOKI.................................................1ST PLAINTIFF
DENNIS MUOKI...................................................2ND PLAINTIFF
VERSUS
JUSTUS MUTIE KIOKO..........................................DEFENDANT
RULING
1. In his Application dated 26th April, 2017, the Defendant is seeking for the following orders:
a. That the orders of 9th March, 2017 and of 24th March, 2017 dismissing the Applicant’s Notice of Motion Applications dated 7th March, 2017 and 9th March, 2017 respectively be set aside and/or varied.
b. That the Defendant/Applicant’s Application dated 7th March, 2017 and 9th March, 2017 be reinstated for hearing and be certified urgent.
c. That the costs of this Application be in the cause.
2. The Application is premised on the grounds that the dismissal of the Applications dated 9th March, 2017 and 24th March, 2017 was due to the fact that the Defendant was not well versed with the process in respect of Applications under certificate of urgency.
3. The Defendant has deponed that his failure to attend court when the matter was listed was inadvertent and that the orders dismissing the Applications should be set aside.
4. In response, the Plaintiff deponed that the Defendant did not attend court on 26th January, 2017 when his case was closed; that the Defendant’s Application seeking to set aside the orders of the court was fixed for hearing on 9th March, 2017 when the Defendant did not turn up and the same was dismissed and that when the Defendant filed another Application to reinstate the dismissed Application, the court dismissed it.
5. The Plaintiff deponed that the current Application is res-judicata and that the same should be dismissed with costs.
6. The Defendant/Applicant’s advocate submitted that the Applicant has over the years being interested in defending this matter; that under Article 50(1) of the Constitution, every person ought to be accorded a fair hearing and that the Defendant made his Application to reinstate the dismissed Application without undue delay.
7. The Defendant’s counsel relied on several authorities which I have considered.
8. The Plaintiffs’/Respondents’ counsel submitted that the court cannot be called upon to sit on its own appeal and that the current Application is frivolous.
9. This is the second attempt the Defendant is making to have the Application dated 7th March, 2017 which was dismissed on 9th March reinstated.
10. Indeed, in the Application dated 9th March, 2017, the Defendant sought for the following orders:
a. That the order of this Honourable Court made on 9th March, 2017 dismissing the Application dated 7th March, 2017 be set aside.
b. That the order setting the matter down for Judgment of 9th June, 2017 be set aside.
11. The said Application was heard by this court inter-partes and vide a Ruling dated 24th March, 2017, the court dismissed the Application on the ground that no good reasons had been given as to why the Defendant was not in court on 9th March, 2017.
12. Similar orders are now being sought in the current Application, and to that extent, the Application is not only res-judicata, but an abuse of the court process.
13. If the Defendant is dissatisfied with the Ruling of 24th March, 2017, he should file an appeal against the said decision.
14. For those reasons, I dismiss with costs the Application dated 26th April, 2017.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 23RD DAY OF FEBRUARY, 2018.
O.A. ANGOTE
JUDGE