[2010] KEHC 1521 (KLR)
The court found that the subject matter of the present suit had already been determined in Kerugoya PMCC No. 265 of 1992 between the same parties, and that the respondent admitted both the prior determination and the existence of a pending appeal. The respondent failed to provide the judgment but did not deny the...
Source-derived case information.
- Citation
- [2010] KEHC 1521 (KLR)
- Parties
- Plaintiff: Mwai Murondo; Defendant: Stephen Muchira Nyaga
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 39 of 2006
- Procedural Posture
- Civil Case / Ruling on Application to Dismiss Suit as Res Judicata
- Outcome
- suit dismissed as res judicata with costs to the defendant
- Legal Topics
- Res Judicata, Abuse of Process, Dismissal of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwai Murondo
Plaintiff
Stephen Muchira Nyaga
Defendant
Procedural Posture
Civil Case / Ruling on Application to Dismiss Suit as Res Judicata
Legal Issues
- 1 Whether the present suit is barred by the doctrine of res judicata under Section 7 of the Civil Procedure Act.
- 2 Whether the filing of a fresh suit constitutes an abuse of court process when the same matter has already been determined and is subject to an appeal.
Ratio Decidendi
The court found that the subject matter of the present suit had already been determined in Kerugoya PMCC No. 265 of 1992 between the same parties, and that the respondent admitted both the prior determination and the existence of a pending appeal. The respondent failed to provide the judgment but did not deny the previous decision. The court held that the filing of a fresh suit in these circumstances contravenes Section 7 of the Civil Procedure Act and amounts to a gross abuse of the court's process. Accordingly, the court declared the suit res judicata and dismissed it with costs to the applicant/defendant, advising the respondent to seek any further orders in the original or appellate...
Court Disposition
suit dismissed as res judicata with costs to the defendant
Orders
- The suit is declared res judicata and is dismissed.
- Costs awarded to the applicant/defendant.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Civil Case 39 of 2006
MWAI MURONDO………….………………….….……….PLAINTIFF
VESUS
STEPHEN MUCHIRA NYAGA…………….…...………..DEFENDANT
R U L I N G
The Application dated 20. 09. 2007 is seeking an order that this suit is Res Judicata and the same should therefore be dismissed.According to counsel for the Applicant, the issues raised herein were heard and determined vide Kerugoya PMCC No. 265 of 1992 between the same parties.
The Plaintiff/Respondent has actually admitted that the matter was heard in Kerugoya court and determined on 23. 03. 06 but he filed Civil Appeal No. 14 of 2006 which is still pending before the High Court in Nyeri. Although the Respondent claims to have annexed the proceedings and judgment in that case, he has only annexed the pleadings and the memorandum of Appeal.The judgment is nonetheless not annexed.He does not therefore deny that the same suit has been heard and determined and an Appeal could be pending before the High court.That admission in itself does not need any qualification.It is evident that the subject matter herein has been determined.Execution can therefore only proceed in those other files and there was no option for the Respondent herein to file a fresh suit before this court.That contravenes Section 7 of the Civil Procedure Act and amounts to a gross abuse of this court’s process.The Application before me has merit.I allow the same, declare the suit herein to be Res Judicata and dismiss the same with costs to the Applicant/Defendant.He is advised to seek any orders related to the subject matter herein in PMCC No. 265/92 or if the Appeal is still pending in the Appeal file.
W. KARANJA
JUDGE
Delivered, dated and signed at Embu this 29th day of September 2010.
In presence of:- Mr. Wambugu for Applicant and Mr. Kariuki for Ngigi for Respondent.