[2018] KEHC 8411 (KLR)
The court found that the issues raised in the current application were identical to those previously raised and determined in the chamber summons dated 30th September 2015. The court held that the applicant's conduct of filing a fresh application seeking similar orders on similar grounds was in breach of the...
Source-derived case information.
- Citation
- [2018] KEHC 8411 (KLR)
- Parties
- Applicant: Millicent Kimuri; Applicant: Benson Wanjohi Njogu; Defendant: Mbisi Lina Catherine; Defendant: Milicon Company Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 154 of 2013
- Procedural Posture
- Civil Suit / Ruling on Application to Set Aside or Review Prior Ruling
- Outcome
- application dismissed with costs to the defendants
- Judges
- JK Sergon
- Legal Topics
- Res Judicata, Review of Court Orders, Taxation of Decretal Sum
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Millicent Kimuri
Applicant
Benson Wanjohi Njogu
Applicant
Mbisi Lina Catherine
Defendant
Milicon Company Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Set Aside or Review Prior Ruling
Legal Issues
- 1 Whether the application to set aside or review the ruling dated 11/12/2015 is res judicata.
- 2 Whether the decretal sum is subject to statutory deductions such as P.A.Y.E, N.S.S.F, and NHIF.
- 3 Whether the defendants should be compelled to pay the balance of the decretal sum in full without deductions.
Ratio Decidendi
The court found that the issues raised in the current application were identical to those previously raised and determined in the chamber summons dated 30th September 2015. The court held that the applicant's conduct of filing a fresh application seeking similar orders on similar grounds was in breach of the doctrine of res judicata as codified in Section 7 of the Civil Procedure Act. Consequently, the application was found to be incompetent and was dismissed with costs to the defendants.
Court Disposition
application dismissed with costs to the defendants
Orders
- The application dated 7th April 2016 is dismissed with costs to the defendants.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. 154 OF 2013
MILLICENT KIMURI............................1ST PLAINTIFF/APPLICANT
BENSON WANJOHI NJOGU................2ND PLAINTIFF/APPLICANT
- V E R S U S -
MBISI LINA CATHERINE.........................................1ST DEFENDANT
MILICON COMPANY LIMITED.............................2ND DEFENDANT
RULING
1) The subject matter of this ruling is the motion dated 7th April 2016 taken out by Millicent Kimuri, the 1st plaintiff/applicant herein. In the aforesaid motion, the applicant sought for the following orders:
1. THAT the Hon. Court be pleased to set aside and/or review of its ruling dated 11/12/2015 on whether the decretal sum of kshs.7,484,435/= is subject to taxation of statutory deductions such as P.A.Y.E, N.S.S.F and NHIF and in the ALTERNATIVE substitute it with an order compelling the defendants to pay the balance of decretal sum in full.
2. THAT the respondents does not pay unjustified deduction of kshs.1,169,112/= to the 1st applicant herein and in default execution to issue.
3. That the cost of this application be provided for.
2) The motion is supported by the affidavit of the applicant. The defendants filed the replying affidavit of Orare Jared Nchore to oppose the motion.
3) When the motion came up for interpartes hearing this court gave directions to have the same disposed of by written submissions. I have considered the grounds set out on the face of the motion and the facts deponed in the affidavits filed in support and against the motion. I have further considered the rival written submissions. In response to the motion, the defendants raised a preliminary objection which is to the effect that the motion is resjudicata. I think it is appropriate to first determine the preliminary objection. It is the submission of the defendants that the issues raised in the current motion were earlier raised in the chamber summons dated 30th September 2015 which summons was heard and dismissed vide this court’s ruling delivered on 11. 12. 2015. This court was therefore implored to dismiss the motion. The applicant in her written submissions did not deem it fit to respond to the preliminary objection. I have compared the two applications and I find them identical in many respects except for a few variations.
4) I am also satisfied that this court heard and determined the chamber summons dated 30th September 2015 on its merits. The 1st plaintiff’s conduct of filing a fresh application seeking for similar orders and on the basis of similar grounds was in breach of Section 7 of Civil Procedure Act. On this ground alone I find the motion to be resjudicata, hence incompetent.
5) The application is ordered dismissed with costs to the defendants.
Dated, Signed and Delivered in open court this 26th day of January, 2018.
J. K. SERGON
JUDGE
In the presence of:
........................................for the Plaintiff
....................................... for the Defendant