[2015] KEHC 3290 (KLR)
The court found that although the parties in both suits are the same and a consent judgment was entered in the earlier suit, the compulsory acquisition of the suit land may have altered the subject matter. Additionally, the significant lapse of time (41 years) and the fact that the current suit is already part heard...
Source-derived case information.
- Citation
- [2015] KEHC 3290 (KLR)
- Parties
- Plaintiff: Ntarangwi M'Kiara; Defendant: Jackson Munyua Mutuera
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 202 of 1995
- Procedural Posture
- Civil Suit / Ruling on Application to Strike Out Suit as Res Judicata
- Outcome
- application dismissed
- Judges
- FM Njoroge
- Legal Topics
- Res Judicata, Striking Out Suit, Consent Judgment, Compulsory Acquisition, Parties Identity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ntarangwi M'Kiara
Plaintiff
Jackson Munyua Mutuera
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Strike Out Suit as Res Judicata
Legal Issues
- 1 Whether the present suit is res judicata Meru CMCC No. 21 of 1973.
- 2 Whether the application to strike out the suit should be granted given the lapse of 41 years and compulsory acquisition of the suit land.
Ratio Decidendi
The court found that although the parties in both suits are the same and a consent judgment was entered in the earlier suit, the compulsory acquisition of the suit land may have altered the subject matter. Additionally, the significant lapse of time (41 years) and the fact that the current suit is already part heard made it inappropriate to strike out the suit as res judicata at this stage. The court was not satisfied that it could definitively pronounce itself on the issue of res judicata without a full hearing. Therefore, the application to strike out the suit was dismissed, and the matter was directed to proceed to hearing.
Court Disposition
application dismissed
Orders
- The application to strike out the suit as res judicata is dismissed.
- Costs to be in the cause.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
CIVIL SUIT NO 202 OF 1995
NTARANGWI M'KIARA.................................................................PLAINTIFF
VERSUS
JACKSON MUNYUA MUTUERA..............................................DEFENDANT
R U L I N G
This application is dated 21st October, 2014 and seeks Orders:-
1. THAT the suit be struck out for being Res-Judicata Meru CMCC NO. 21 of 1973.
2. THAT costs of this application and the entire suit be awarded to the Defendant/Applicant.
The application is supported by the affidavit of JACKSON MUNYUA MUTUERA, the applicant. It has the following grounds:-
1. THAT the matter in issue in this suit was the similar matter that was conclusively determined in Meru CMCCC NO. 21 of 1973.
2. THAT the parties are the same parties in Meru CMCC NO. 21 of 1973.
3. THAT the application is merited.
I have carefully gone through proceedings in this suit and in other related suits. This suit was filed in 1995. The applicant claims that the suit is Res Judicata MERU CMCC No. 21 of 1973. A Consent Judgement was entered in the latter suit on 18/1/1974, 41 years ago. At some point the original suit land was compulsorily acquired by the Government.
Having looked at the authorities proffered by the Parties, I find that they are good authorities in proper contexts and circumstances, However, It is clear to me that this application that this suit is res-judicata a suit in which a Consent was entered by the Parties 41 Years ago is sui generis. I am not comfortable that this application is being filed 41 Years later. I do note that this suit is part heard. I am also apprehensive that the Compulsory acquisition of the suit land may have altered the subject matter, although the parties may remain the same. I am unable, at this stage, to definitively pronounce myself on the issue of res-judicata.
In the circumstances, I dismiss the application with costs to be in the cause.
The parties are directed to have this suit set down for hearing within 90 days of the delivery of this ruling.
It is so ordered.
Delivered in Open Court at Meru this 7th day of July, 2015 in the presence of:-
CC: Lilian /Daniel
Manases Kariuki for Defendant/Applicant
Kioga Absent for Plaintiff
P.M. NJOROGE
JUDGE