[2019] KEHC 11330 (KLR)
Although the doctrine of res judicata does not strictly apply since H.C.C.C. No. 29 of 2017 has not been determined on its merits and is merely stayed, the existence of a parallel suit involving the same parties and substantially similar issues justifies consolidation. The court found that the issue of rent and...
Source-derived case information.
- Citation
- [2019] KEHC 11330 (KLR)
- Parties
- Plaintiff: MHW; Defendant: AAH
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 12 of 2018
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- suit consolidated with H.C.C.C. No. 29 of 2017; costs in the cause
- Judges
- A Ali-Aroni
- Legal Topics
- Matrimonial Property, Res Judicata, Case Consolidation, Distribution of Rental Income
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
MHW
Plaintiff
AAH
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit is res judicata in light of H.C.C.C No. 29 of 2017 (O.S.).
- 2 Whether the current suit amounts to an abuse of court process.
- 3 Whether the issue of rent and sharing of proceeds should be determined in the earlier suit.
Ratio Decidendi
Although the doctrine of res judicata does not strictly apply since H.C.C.C. No. 29 of 2017 has not been determined on its merits and is merely stayed, the existence of a parallel suit involving the same parties and substantially similar issues justifies consolidation. The court found that the issue of rent and sharing of proceeds can be addressed within H.C.C.C. No. 29 of 2017, and proceeding with the current suit would be duplicative and contrary to the interests of justice. Therefore, the appropriate course is to consolidate the present suit with H.C.C.C. No. 29 of 2017 to ensure efficient and consistent adjudication of all related matters.
Court Disposition
suit consolidated with H.C.C.C. No. 29 of 2017; costs in the cause
Orders
- This cause is hereby consolidated with H.C.C.C. No. 29 of 2017.
- Costs in the cause.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
FAMILY DIVISION
CIVIL CASE NO. 12 OF 2018
MHW.................................PLAINTIFF
VERSUS
AAH...............................DEFENDANT
R U L I N G
1. This matter was scheduled to be heard on the 14th of March, 2019.
The Plaintiff MHW has sued his estranged wife AAH over properties known as plot Nos. [Particulars withheld] Kimathi River Bank. In the result seeks for Kshs.10,224,000 as rent and interest collected by the defendant.
2. The defendant raised a Preliminary Objection to the suit. She contends that this suit is res judicata in view of High Court Case Number 29 of 2017(O.S.) AAH vs MHW and further that this suit amounts to an abuse of court process.
3. At that the hearing of Preliminary Objection the defendant’s counsel argued that H.C.C.C No. 29 of 2017 deals with the properties in question as in issue is distribution of the same. She further informed the court that the said suit was stayed pending determination of the divorce between the two at the Kadhi’s court.
4. In response counsel for the Plaintiff sought to have this case stayed in view of the existence of H.C.C.C. No. 29 of 2017.
5. There seem to be an agreement between the parties that H.C.C.C. No. 29 of 2017 raises issues similar or substantially to the issues raised in this case. H.C.C.C. No. 29 of 2017 was stayed to pave way for a divorce cause between the parties, in which case the doctrine of res judicata is yet to come into play. However, this court cannot proceed with this suit in view of the existence of H.C.C.C. No. 29 of 2017, though the issue herein is more of accounting and sharing of proceeds of rent.
6. In my view the issue of rent and how to share the proceeds may be raised in H.C.C.C. No. 29 of 2017 and canvassed therein.
7. Consequently in the interest of justice this cause be and is hereby consolidated with case No. H.C.C.C. No. 29 of 2017.
8. Costs in the cause.
DATED, SIGNED and DELIVERED IN NAIROBI this 9TH day of May, 2019.
........................................
ALI-ARONI
JUDGE