[2013] KEHC 6613 (KLR)
The application before the court was identical to a previous application that had already been dismissed by Lady Justice Ong’udi. The doctrine of res-judicata, as codified in Section 7 of the Civil Procedure Act and affirmed in MBURU KINYUA v GACHINI TUTI [1978] KLR 69, applies to applications as well as suits....
Source-derived case information.
- Citation
- [2013] KEHC 6613 (KLR)
- Parties
- Plaintiff: Michael Munene Njogu; Plaintiff: David Murage Njogu; Plaintiff: John Karangu Njogu; Defendant: Bernard Githinji; Defendant: Munene Gathenge; Defendant: Joyce Kariithi Njeru
- Court
- High Court
- Court Station
- High Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 151 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Consolidation, Amendment, Injunction, and Stay
- Outcome
- application dismissed with costs
- Judges
- BN Olao
- Legal Topics
- Res Judicata, Consolidation of Suits, Amendment of Pleadings, Temporary Injunctions, Stay of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Munene Njogu
Plaintiff
David Murage Njogu
Plaintiff
John Karangu Njogu
Plaintiff
Bernard Githinji
Defendant
Munene Gathenge
Defendant
Joyce Kariithi Njeru
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Consolidation, Amendment, Injunction, and Stay
Legal Issues
- 1 Whether the application is res-judicata in light of a previous ruling on a similar application.
- 2 Whether the plaintiffs are entitled to consolidation of suits, amendment of pleadings, temporary injunction, and stay of proceedings.
Ratio Decidendi
The application before the court was identical to a previous application that had already been dismissed by Lady Justice Ong’udi. The doctrine of res-judicata, as codified in Section 7 of the Civil Procedure Act and affirmed in MBURU KINYUA v GACHINI TUTI [1978] KLR 69, applies to applications as well as suits. Since the issues and parties were the same, and no appeal or proper new application was filed as previously advised, the court found that it was precluded from reconsidering the matter. Entertaining the application would amount to sitting on appeal over a decision of a court of equal jurisdiction, which is impermissible. The application was therefore dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application dated 12th June 2012 is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
44 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA AT KERUGOYA
ENVIRONMENT AND LAND COURT
ELC CASE NO. 151 OF 2013
MICHAEL MUNENE NJOGU .........................................................1ST PLAINTIF
DAVID MURAGE NJOGU ............................................................2ND PLAINTIFF
JOHN KARANGU NJOGU ............................................................3RD PLAINTIFF
VERSUS
BERNARD GITHINJI .................................................................1ST DEFENDANT
MUNENE GATHENGE ..............................................................2ND DEFENDANT
JOYCE KARIITHI NJERU .........................................................3RD DEFENDANT
RULING
On 4th December 2012, Lady Justice Ong’udi delivered a ruling dismissing the plaintiffs/ applicants application dated 3rd May 2012. That application sought the following orders:-
Consolidation of this suit with Embu H.C.CC No. 21 of 2012 (now Kerugoya E.L.C Case No. 55 of 2012)
Leave to the applicants to amend their pleadings to enjoin LAWRENCE WACHIRA NGIRIGACHA the defendant in Embu HCCC No. 21 of 2012 (now Kerugoya ELC Case No. 55 of 2012) as the 4th defendant
Temporary injunction to restrain LAWRENCE WACHIRA NGIRIGACHA, his agents workmen, servants or any persons claiming through them or otherwise from dealing, interfering, alienating or otherwise demolishing, occupying or trespassing forthwith with property No. leasehold INOI/KERUGOYA/250/16 within Kerugoya Township and all structures or buildings erected thereon pending the hearing and determination of this application and until the determination of this suit.
Stay of HCCC No. 21 of 2012 (Now Kerugoya ELC Case No. 55 of 2012) or giving of necessary and proper directions as shall be necessary for the conduct of this said consolidation.
In dismissing the said application, Lady Justice Ong’udi made the following findings:-
That there was no attachment of the draft of the amendments to be effected
The issues for determination in the two suits sought to be consolidated were not similar
The prayer for temporary injunction against LAWRENCE WACHIRA NGIRIGACHA could not issue as he was not a party
No basis had been laid for staying the proceedings in Embu HCCC No. 21 of 2012 (now Kerugoya ELC Case NO. 55 of 2012).
The Judge ended her ruling by advising the applicants to make a “proper application” for amendment or consider withdrawing the two suits altogether and file fresh suit.
On 12th June 2012, the plaintiffs/applicants filed a similar application to the one dismissed on 4th December 2012 and sought the same remedies. This second application was also supported by the affidavit of the 1st plaintiff/applicant MICHAEL MUNENE NJOGU raising the same issues as he did in the previous application.
When this application came up on 2nd July 2013, it was agreed that it be canvassed by way of written submissions which have been filed.
I have considered the application, the grounds of opposition and the submissions by counsels. I have also considered the earlier ruling on the matter as delivered by Lady Justice Ong’udi on 4th December 2012.
It is clear that this application is res-judicata. As I have illustrated above, this same application was canvassed before Lady Justice Ong’udi and she delivered a ruling on 4th December 2012 dismissing the same. It is also clear from the Court of Appeal decision in MBURU KINYUA VS GACHINI TUTI 1978 K.L.R 69 that the principle of res-judicata as defined in Section 7 of the Civil Procedure Act applies equally to applications.
It is clear to my mind that this application now before me is res-judicata as a similar application was dismissed by Lady Justice Ong’udi on 4th December 2012. It matters not that this Court or any other Court may have arrived at a different decision. This application is for dismissal. To do otherwise would amount to sitting on an appeal over a decision of a Court of equal jurisdiction.
Even if this Court were to be magnanimous to the applicants and take the view that they have taken the advise of Lady Justice Ongu’di to file a proper application which this Court should now consider, no such proper application was filed. Instead, the applicants filed the same application annexing to it the same plaint that had been annexed to the earlier application with no “draft of the amendment” to be effected as was found by Lady Justice Ong’udi in her earlier ruling which the plaintiffs/applicants did not appeal against.
That being my view of the matter, I find that this application is res-judicata. The same is hereby dismissed with costs.
B.N. OLAO
JUDGE
19TH SEPTEMBER, 2012
19/9/2013
Coram
B.N. OLao – Judge
CC – Muriithi
Mr. Mbichire for Applicant – absent
Mr. Ngigi for Respondent – present
Mr. Njage for interested party - present
COURT: Ruling delivered this 19th day of September 2013 in open Court.
B.N.OLAO
JUDGE
19TH SEPTEMBER, 2013