[2001] KEHC 559 (KLR)
The court found that the application dated 21st December, 2001 was a repeat of previous applications that had already been determined, including one dismissed for non-attendance and another dismissed for lack of merit. The court held that the principle of res judicata applied, as the matter had been effectively...
Source-derived case information.
- Citation
- [2001] KEHC 559 (KLR)
- Parties
- Plaintiff: Muchiri Muhunyo; Defendant: Mwangi Muhunyo
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 263 of 2001
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection upheld; application dismissed as res judicata
- Legal Topics
- Res Judicata, Abuse of Process, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Muchiri Muhunyo
Plaintiff
Mwangi Muhunyo
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the application dated 21st December, 2001 is res judicata.
- 2 Whether the repeated applications constitute an abuse of the court process.
Ratio Decidendi
The court found that the application dated 21st December, 2001 was a repeat of previous applications that had already been determined, including one dismissed for non-attendance and another dismissed for lack of merit. The court held that the principle of res judicata applied, as the matter had been effectively determined on merit, particularly by the order stating the application had no merit. The court rejected the applicant's argument that the applications had not been heard on merit, finding this to be an attempt to circumvent the finality of previous decisions. Accordingly, the court upheld the preliminary objection and declared the application res judicata.
Court Disposition
preliminary objection upheld; application dismissed as res judicata
Orders
- The application dated 21st December, 2001 is declared res judicata and dismissed.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 263 OF 2001
MUCHIRI MUHUNYO …………………………………….PLAINTIFF
VERSUS
MWANGI MUHUNYO ………………………………….DEFENDANT
R U L I N G
When the application dated 21st December, 2001 came up for hearing on 22nd February 2002 counsel for the respondent raised a preliminary objection which he argued as follows:-
That a similar application was dismissed by Judge Kuloba on 23rd November 2000. That an attempt to set aside the dismissal was also dismissal on 7th December, 2001 for lack of merit.
That the application before the court was an abuse of the court process and that it should be dismissed with costs.
Counsel for the applicant on the other hand argued that the application dismissed on 23rd November 2001 was because of non-attendance and that the application dismissed on 7th December, 2001 was because of lack of merit.
That none of the application had been heard and determined on merit.
That this was an application for stay of execution and tat the applicant is not banned from coming back to the court particularly that the appeal is still pending with high chances of success.
That the preliminary objector can be compensated in costs.
I have heard the arguments from both counsel for the parties.
The application dismissed on 23rd November 2001 was for stay of execution. It was dismissed for non-attendance.
An attempt to set aside that dismissal order was also dismissed because it had no merit. This was on 7th December, 2001.
This later order was as if the matter had been determined on merit hence the use of the term “the application does not have merit”, hence final and effective.
When then counsel for the applicant submits that none of the applications had been heard and determined on merit – he is just try to make a case for himself which the court does not understand.
The principle of res judicata effectively applies to this case and the present case (application) is just a repeat of what has already been determined.
I uphold the preliminary objection and declare the application dated 21st December, 2001 as being res judicata.
Delivered this 27th day of February, 2002.
D.K.S. AGANYANYA
JUDGE