Kenya Judgment

High Court · High Court at Nairobi (Milimani Law Courts)

MI v MB [2021] KEHC 12885 (KLR)

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Professional case brief

Research organized from the available case record

Source document

01

Holding and result

The court found that it now has jurisdiction to hear and determine the application for stay of execution because a valid appeal has been filed. The court further held that the doctrine of res judicata does not apply in this instance because the previous application was dismissed for want of jurisdiction and not on the merits. Therefore, the preliminary objection raised by the respondent is not sustainable and is dismissed with costs.

Court disposition

preliminary objection dismissed

Orders

  • The preliminary objection raised by the respondent is dismissed with costs.

02

Material facts

Parties

MI

Applicant

MB

Respondent

03

Procedural history

  1. Posture

    Stay Application / Ruling on Preliminary Objection

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant argued that there is a pending appeal and sought a stay of execution of the Children Court's orders pending the determination of the appeal, relying on Order 42 rule 6 of the Civil Procedure Rules.
Respondent
The respondent raised a preliminary objection, contending that the application is res judicata in light of the decision in Civil Appeal No. 131 of 2019, as the parties and subject matter are the same.

05

Court’s reasoning

  1. 01

    Section 7, Civil Procedure Act; Abok James Odera v John Patrick Machira, Civil Application No. 49 of 2001 (Nairobi)

    Res judicata applies only where a former suit between the same parties on the same subject matter was heard and determined on merits by a competent court.

  2. 02

    Order 42 rule 6, Civil Procedure Rules

    A court has jurisdiction to grant stay of execution where a valid appeal has been filed and an application is properly before it under Order 42 rule 6.

06

Ratio, limits and disposition

Ratio decidendi

The court found that it now has jurisdiction to hear and determine the application for stay of execution because a valid appeal has been filed. The court further held that the doctrine of res judicata does not apply in this instance because the previous application was dismissed for want of jurisdiction and not on the merits. Therefore, the preliminary objection raised by the respondent is not sustainable and is dismissed with costs.

Obiter and limits

  • For res judicata to apply, the issue must have been heard and decided on merits.

Court disposition

preliminary objection dismissed

  • The preliminary objection raised by the respondent is dismissed with costs.

Source and reliance status

High Court

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Judgment reading view

Judgment text

The complete available source text.

Source document

High Court

Judgment

[2021] KEHC 12885 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

FAMILY DIVISION

CIVIL CASE NO. 113 OF 2018

MI................................................................................PETITIONER

VERSUS

MB............................................................................RESPONDENT

RULING

1. In Civil Appeal No. 131 of 2019, the parties were the same as the ones in the instant appeal and application. The subject matter was their son whose custody and maintenance were in issue. The applicant therein sought stay of execution of the orders that the Children Court had granted. The application had been brought under Order 42 rule 6 Civil Procedure Rules. The application was refused because the court found that it had no jurisdiction to grant stay as no appeal had been filed. What the applicant had annexed was only a Draft Memorandum of Appeal.

2. In the instant application, the applicant has a pending appeal filed on 26th October 2018. She is seeking the stay of the orders given on 5th November 2019 by the Children Court which sought to execute the judgment of 27th September 2018 by the same court. The orders were sought pending the hearing and determination of the appeal. Once again the application is under Order 42 rule 6 of the Civil Procedure Rules.

3. It is evident that now the court has the jurisdiction to hear and determine the application for stay.

4. The plea that the present application is re -judicata, given the decision in Civil Appeal No. 131 of 2019 is not sustainable. This is because res judicata under section 7 of the Civil Procedure Act proceeds on the basis that there was a former suit in a competent court between the same parties litigating over the same subject matter and that in the former suit the court heard and determined the issues in question and the same issues have been raised in the subsequent case. (Abok James Odera –v- John Patrick Machira, Civil Application No. 49 of 2001 at Nairobi). For res judicata to issue the issue must have been heard and decided on merits. In Civil Appeal No. 131 of 2018, the court did not deal with the merits as it had no jurisdiction, there being no appeal.

5. In conclusion, the preliminary objection raised by the respondent is not sustainable and is dismissed with costs.

DATED AND DELIVERED AT NAIROBI THIS 13TH MAY 2021.

A.O. MUCHELULE

JUDGE

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Abok James Odera v John Patrick Machira, Civil Application No. 49 of 2001 (Nairobi)

Case cited

Section 7, Civil Procedure Act

Legislation

Legislation referenced in the available case record.

Order 42 rule 6, Civil Procedure Rules

Legislation

Legislation referenced in the available case record.

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