[2017] KEHC 3076 (KLR)

[2017] KEHC 3076 (KLR)

The court found that the present suit and the earlier suit, HCCC No. 2110 of 1994, involved the same parties and were based on the same facts. The plaintiff was attempting to re-litigate issues that had already been determined, amounting to res judicata and a gross abuse of the court process. Consequently, the court allowed the defendant’s application to set aside the judgment and struck out the plaintiff’s suit, awarding costs to the defendant.

Citation
[2017] KEHC 3076 (KLR)
Parties
Plaintiff: N K; Defendant: D K M
Court
High Court
Court Station
High Court at Nairobi (Milimani Commercial Courts)
Jurisdiction
Kenya
Judgment Date
29 September 2017
Case Number
Civil Case 34 of 2013
Procedural Posture
Originating Summons / Ruling on Application to Set Aside Judgment and Strike Out Suit
Outcome
Application allowed; suit struck out as res judicata and abuse of process.
Judges
DN Musyoka
Legal Topics
Res Judicata, Abuse of Process, Matrimonial Property, Setting Aside Judgment
Source Language
English
Civil Procedure Res Judicata Abuse of Process Matrimonial Property Setting Aside Judgment

Case Brief

Summary, issues, holding and outcome

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Parties

N K

Plaintiff

D K M

Defendant

Procedural Posture

Originating Summons / Ruling on Application to Set Aside Judgment and Strike Out Suit

Legal Issues

  1. 1 Whether the present suit is res judicata in light of HCCC No. 2110 of 1994.
  2. 2 Whether the plaintiff is abusing the court process by filing a similar suit after dismissal of the earlier one.
  3. 3 Whether the judgment delivered in absence of the defendant should be set aside.

Ratio Decidendi

The court found that the present suit and the earlier suit, HCCC No. 2110 of 1994, involved the same parties and were based on the same facts. The plaintiff was attempting to re-litigate issues that had already been determined, amounting to res judicata and a gross abuse of the court process. Consequently, the court allowed the defendant’s application to set aside the judgment and struck out the plaintiff’s suit, awarding costs to the defendant.

Court Disposition

Application allowed; suit struck out as res judicata and abuse of process.

Orders

  • The application dated 2nd March 2015 is allowed in terms of prayer 3.
  • The plaintiff’s suit is struck out as res judicata and an abuse of court process.