[2002] KEHC 166 (KLR)
The court held that the plaintiff's application dated 22/8/2000 was res judicata because the issues raised had already been determined in previous proceedings. The court had previously granted orders on the application, which were later set aside on condition that the defendants pay an admitted sum to the plaintiff....
Source-derived case information.
- Citation
- [2002] KEHC 166 (KLR)
- Parties
- Plaintiff: M/S Barwazir (1993) Ltd; Defendant: Zahar Manji; Defendant: N. Manji; Defendant: N. Kassam t/a Turbo Sound
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 312 of ??
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- application dismissed as res judicata
- Legal Topics
- Res Judicata, Preliminary Objection, Summary Judgment, Triable Issues
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
M/S Barwazir (1993) Ltd
Plaintiff
Zahar Manji
Defendant
N. Manji
Defendant
N. Kassam t/a Turbo Sound
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the plaintiff's application dated 22/8/2000 is res judicata.
- 2 Whether the application should be dismissed on the basis that it has already been determined by the court.
Ratio Decidendi
The court held that the plaintiff's application dated 22/8/2000 was res judicata because the issues raised had already been determined in previous proceedings. The court had previously granted orders on the application, which were later set aside on condition that the defendants pay an admitted sum to the plaintiff. This sum was paid, and the court had found that the remaining balance involved triable issues warranting a full hearing. Since a defence had already been filed and the matter set for hearing, the court concluded that the application had been conclusively determined and should not be re-litigated. The proper course was for the plaintiff to set down the main suit for hearing on...
Court Disposition
application dismissed as res judicata
Orders
- The hearing of the application dated 22/8/2000 is dismissed for being res judicata.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYAAT MOMBASACIVIL CASE NO.312 OF 2000 M/S BARWAZIR (1993) LTD ………………………………. PLAINTIFF VERSUS
M/S BARWAZIR (1993) LTD ………………………………. PLAINTIFF
VERSUS
ZAHAR MANJI ………………………………………. 1ST DEFENDANT
N. MANJI ……………………………………………... 2ND DEFENDANT
N. KASSAM t/a TURBO SOUND …………………… 3RD DEFENDANT
RULING
The Plaintiff Applicant set down for hearing a Notice of Motion dated 22nd August, 2000 on 23/4/2002.
Before the commencement of the hearing the Respondents’ Advocate raised a Preliminary objection for which he had served a Notice on 15/5/2001. The point raised is that the said application is res judicata having been argued before this court and orders granted. However the orders granted were set aside on application by one of Defendants on 9/2/2001 on condition that an admitted sum of Shs.371,000/- be paid to the Plaintiff which I am now told has been paid. There was a balance of the Plaintiff’s claim amounting to Shs.689,500/-. For this sum the court found that there were triable issues and that the defendant was entitled to a hearing to that extent. The respondent therefore states that the application now listed for hearing has been determined. I agree with him. It is for the Plaintiff to set down the suit for hearing. There is already a defence filed by the defendants.
The posed hearing of the application dated 22/8/2000 is therefore dismissed for being res judicata.
Dated at Mombasa this 26th Day of April, 2002. J. KHAMINWA COMMISSIONER OF ASSIZE