[2023] KEHC 24998 (KLR)

Mwathe v Njamwea & another (Civil Appeal 193 of 2017) [2023] KEHC 24998 (KLR) (6 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24998 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal 193 of 2017

DKN Magare, J

November 6, 2023

Between

Joseph Gikuhi Mwathe

Appellant

and

Daniel Kariuki Njamwea

1st Respondent

Family Bank Limited

2nd Respondent

(An appeal against the Ruling of E M Kagoni in Mombasa CMCC No. 1301 of 2016)

Ruling

1. This appeal was filed on 5/10/2017 against the Ruling of E M Kagoni in Mombasa CMCC No. 1301 of 2016, claiming loss of user. This appeal has been pending ad infinitum. No action was taken till I issued notices on 6/3/2023. Subsequently the Appeal was dismissed for want of prosecution. Upon dismissal the Appellant set down the application for re-instatement for hearing.

2. In taking the dates for 22/6/2023, they knew that the mater had been dismissed. On 22/06/2023 I dismissed the application for re-instatement for want of prosecution.

3. On 25/7/2023, the plaintiff filed another application without re-instatement the first one. The issue of reinstatement is now res judicata the application of dated 19/6/2023 that had been dismissed.

4. Res judicata has its roots in Section 7 of the Civil Procedure Act which reads as follows: -“No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.”

5. In C.K. Bett Traders Limited & 2 others v Kennedy Mwangi & another [2021] eKLR, the court held as doth: -“34. In that respect, the Court of Appeal held in The Independent Electoral and Boundaries Commission v Maina Kiai & 5 others, [2017] eKLR), that:"For the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must be satisfied, as they are rendered not in disjunctive but conjunctive terms;a)The suit or issue was directly and substantially in issue in the former suit.b)That former suit was between the same parties or parties under whom they or any of them claim.c)Those parties were litigating under the same title.d)The issue was heard and finally determined in the former suit.e)The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised."

35. The Court went on to state on the role of the doctrine:"The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the specter of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as a pragmatic and commonsensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and fora, to obtain at last, outcomes favourable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute or calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice.”

6. The applicant did not prosecute the appeal. The appeal was raising a question of the suit not being prosecuted. The suit was dismissed for want of prosecution. This led to the appeal herein being filed. The appeal was dismissed for want of prosecution. The applicant filed an application to reinstate the Appeal. The application for reinstatement of the appeal which was dismissed for want of prosecution was dismissed for want prosecution or nonattendance. Instead of remedying the first error the applicant filed A similar application to re-instate the dismissed appeal for want of prosecution.

7. This causes two questions, there is absolutely no excuse in not prosecuting the appeal. Secondly, the application to reinstate is already dismissed. The dismissal has not been set aside. This means as far as this court is concerned the issue of reinstatement is moot. It is concluded and the court is functus officio.

8. In the case of Thathini Development Company Limited v Mombasa Water & Sewerage Company & another [2022] eKLR , justice Naikuni stated as doth; -“The Legal substratum for dismissal of suits for want of prosecution is founded on the Principles that litigation must be expedited, and concluded by parties who come to court for seeking justice. To assist in clearing backlogs in court and the ever increasing over-loads restoring bad public confidence and trust on the judiciary. Upon filing of cases parties should efficiently and effectively be seen to fast track their hearing and determination. There should be no delay at all based on legal maxim – Justice delayed is justice denied” Nonetheless, should there be any delay arising from one substantive and justifiable logistical cause or reason, the same should not be inordinate, unreasonable and inexcusable. I say so, as that would be doing grave injustice to one side or the other or both and in such circumstance, the Honorable May in its discretion dismiss the action straight away. 11. Additionally, the Provisions of Order 17 Rule 2 (3) of the Civil Procedure Rules provides, inter alia:-1. In any suit in which no application has been made or step taken by either party for one year, the court may give Notice in writing to the parties to show cause why the suit should not dismissed and if cause is not shown to its satisfaction, may dismiss the suit.

2. ………

3. any party to the suit may apply for its dismissal as provided in Sub-rule 1”.”The good judge continued as doth: -“In the case of “Ivita – Versus - Kyumbu [1984] KLR 441 the Court laid down principles for issuance of an order of dismissal of suit for want of prosecution. It stated:-“The test is whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite such delay. Justice is justice to both the Plaintiff and Defendant; so both parties to the suit must be considered and the position of the judge too, because it is no easy task for the documents, and, or witnesses may be missing and evidence is weak due to the disappearance of human memory resulting from lapse of time. The Defendant must however satisfy the court that it will be prejudiced by the delay or even that the plaintiff will be prejudiced. He must show that justice will not be done in the case due to the prolonged delay on the part of the plaintiff before the court will exercise its discretion in his favour and dismiss the action for want of prosecution. Thus, even if delay is prolonged if the court is satisfied with the plaintiff's excuse for the delay, the action will not be dismissed, but it will be ordered that it be set down for hearing at the earliest available time.”

9. In the case of Mukisa Biscuit Manufacturing Co. Ltd V. West End Distributors Ltd. (1969) EA 696. , the court of Appeal for eastern Africa stated as doth: -

10. In Stephen Mwangi Kimote v Murata Sacco Society [2018] eKLR justice J G Kemei stated as doth: -“10. Is a dismissal a judgement? The Learned Judges when confronted by the same question in the case of Njue Ngai Vs Ephantus Njiru & Anor CA 29 of 2015 , Nyeri stated as follows;"18. Another issue may arise as to whether a dismissal of a suit for non attendance of the Plaintiff or for want of prosecution, amounts to a judgment in that suit. The predecessor of this Court answered that issue in the affirmative when considering the dismissal of a suit for failure by the Plaintiff to attend Court in the case of Peter Ngome vs Plantex Company Limited [1983] eKLR. stating:“Rule 4(1) does not say “judgment shall be entered for the defendant or against the Plaintiff.” It uses the word “dismissed.” The Civil Procedure Act does not define the word “judgment”. According to Jowitt’s Dictionary of English Law 2nd ed p 1025:“Judgment is a judicial determination; the decision of a Court; the decision or sentence of a Court on the main question in a proceeding or/one of the questions, if there are several.”

Mulla’s Indian Civil Procedure Code, 13th Ed Vol 1 p 798 says: “Judgment” means the statement given by the judge on the grounds of a decree or order;” “Judgment - in England, the word judgment is generally used in the same sense as decree in this code.”In my view, a judgment is a judicial determination or decision of a Court on the main question(s) in a proceeding and includes a dismissal of the proceedings or a suit under Rule 4(1) of Order IXB or under any other provision of law. A dismissal of a suit, under Rule 4(1), is a judgment for the defendant against the Plaintiff. An application under Rule 3 of Order IXB includes application to set aside a dismissal. This must be so because, when neither party attends Court on the day fixed for hearing, after the suit has been called on for hearing outside the Court, the Court May dismiss the suit, and, in that event, either party may apply under Rule 8 to have the dismissal set aside or the Plaintiff may bring a fresh suit subject to any law of limitation of actions: See Rule 7(1) of Order IXB. This, I think, clearly shows that Rule 7(2) was intended to bar a Plaintiff whose suit has been dismissed under Rule 4(1), only from bringing a fresh suit. That provision does not bar such a Plaintiff from applying for the dismissal to be set aside under Rule 8. ”It is clear that a dismissal of a case is similar to a judgement and therefore this application falls squarely under order 9 rule 9 a).”

11. The effect of such a holding is that the dismissal on 22/6/2023 is a dismissal within the meaning of section 7 of the civil procedure Act. I am therefore precluded from dealing with a question which I dealt with when the first application for dismissal was done.

12. Thus the application that was dismissed was not for ornamental value. The dismissal must mean something. Consequently, the application dated 25/7/2023 is accordingly dismissed for being res judicata with costs.

Determination 13. The upshot of the foregoing is that I make the following order: -a.Application dated 25/7/2023 is accordingly dismissed for being res judicata with costs of Ksh 20,000/- payable within 30 days.b.The file is closed.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 6TH DAY OF NOVEMBER, 2023. KIZITO MAGARE..................................JUDGEI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR