[2024] KEHC 11792 (KLR)
The court found that the present application was the third attempt by the applicants to seek leave to appeal out of time and stay of execution regarding the same small claims court judgment, after two previous applications had been dismissed by courts of competent jurisdiction. The court held that Section 7 of the...
Source-derived case information.
- Citation
- [2024] KEHC 11792 (KLR)
- Parties
- Applicant: Alice Njeri; Applicant: Boniface Mumo; Respondent: Nicholus Ndetei Kithuka
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application E218 of 2023
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection
- Outcome
- application dismissed as res judicata
- Judges
- JN Mulwa
- Legal Topics
- Res Judicata, Leave to Appeal Out of Time, Stay of Execution, Small Claims Appeals
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alice Njeri
Applicant
Boniface Mumo
Applicant
Nicholus Ndetei Kithuka
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the application for leave to appeal out of time and stay of execution is barred by the doctrine of res judicata.
- 2 Whether the current application constitutes an abuse of court process due to previous similar applications having been dismissed.
Ratio Decidendi
The court found that the present application was the third attempt by the applicants to seek leave to appeal out of time and stay of execution regarding the same small claims court judgment, after two previous applications had been dismissed by courts of competent jurisdiction. The court held that Section 7 of the Civil Procedure Act clearly bars the re-litigation of matters that have already been determined between the same parties. The court was persuaded that the instant motion was an abuse of the court process and was res judicata. Consequently, the preliminary objection was upheld and the application was dismissed with costs to the respondent.
Court Disposition
application dismissed as res judicata
Orders
- The preliminary objection is upheld.
- The motion dated 18/04/2023 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
25 paragraphs
Njeri & another v Kithuka (Miscellaneous Application E218 of 2023) [2024] KEHC 11792 (KLR) (Civ) (3 October 2024) (Ruling)
Neutral citation: [2024] KEHC 11792 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Civil
Miscellaneous Application E218 of 2023
JN Mulwa, J
October 3, 2024
Between
Alice Njeri
1st Applicant
Boniface Mumo
2nd Applicant
and
Nicholus Ndetei Kithuka
Respondent
Ruling
1. The Applicants in this motion dated 18/04/2023 seek leave to appeal out of time and stay of execution of the small claims court judgment delivered on 27/04/2022 in SCC. No. E058 of 2022 pending hearing and determination of the intended appeal.
2. In opposition to the Application the Respondent in his Notice of Preliminary Objection dated 1/03/2024 objected to its hearing stating that the application is Res-judicata citing two similar past applications that had been filed and both dismissed.
3. The past Miscellaneous Applications (suit) are stated as HCC Misc. Appln. No. E147 of 2023 Alice Njeri & Bonface Mumo Vs. Nicholas Ndetei Kithuka vide an Application dated 16/03/2023 wherein the applicant sought leave to file appeal out of time and stay of execution of the same SCC Case No. E058/2022 between the same parties. The motion was dismissed on the 12/10/2023 by the Hon. D. S. Majanja J.
4. A similar suit dated in Misc. Application no. E216 of 2022 was filed by an Application dated 2/04/2022 similar orders were sought in the same trial court.It was dismissed by Hon. Meoli J. on 7/11/2022.
5. There is no doubt that the applicant’s third suit herein, by the instant Motion dated 18/04/2023 is yet another attempt to mislead the court by filing similar suits by applications seeking same orders.
6. I have read the orders of court dismissing the suits and motions.I am sufficiently persuaded that this suit is yet another suit by the same parties, over the same subject matter having been litigated and determined by courts of competent jurisdiction.
7. Section 7 of the Civil Procedure Act bars courts from relitigating suits and all applications thereunder by the doctrine of Res-judicata. In the circumstances, the Respondent’s Preliminary Objection is upheld. The suit and motion dated 18/04/2023 are hereby dismissed with costs to the Respondent.It is so ordered.
DELIVERED DATED AND SIGNED AT NAIROBI THIS 3RD DAY OF OCTOBER, 2024. JANET MULWAJUDGE