[2012] KEHC 4918 (KLR)
The court found that although the parties and subject matter in Nakuru HCCC No. 73 of 2006 and the present suit are the same, the earlier suit has not been heard and finally decided as required by Section 7 of the Civil Procedure Act. Only the respondent’s application for injunction was dismissed, not the entire...
Source-derived case information.
- Citation
- [2012] KEHC 4918 (KLR)
- Parties
- Applicant: Nyandarua Progressive Agencies Ltd; Respondent: Paul Kuria Wainaina
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 166 of 2009
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection and Application for Stay
- Outcome
- Preliminary objection overruled; suit stayed pending determination of Nakuru HCCC No. 73 of 2006; no order as to costs.
- Judges
- SP Ouko
- Legal Topics
- Res Judicata, Stay of Proceedings, Adverse Possession, Preliminary Objection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nyandarua Progressive Agencies Ltd
Applicant
Paul Kuria Wainaina
Respondent
Procedural Posture
Civil Suit / Ruling on Preliminary Objection and Application for Stay
Legal Issues
- 1 Whether the present suit is res judicata Nakuru HCCC No. 73 of 2006.
- 2 Whether the suit should be stayed pending determination of Nakuru HCCC No. 73 of 2006.
- 3 Whether the preliminary objection raises pure points of law.
Ratio Decidendi
The court found that although the parties and subject matter in Nakuru HCCC No. 73 of 2006 and the present suit are the same, the earlier suit has not been heard and finally decided as required by Section 7 of the Civil Procedure Act. Only the respondent’s application for injunction was dismissed, not the entire suit. Therefore, the plea of res judicata does not apply. However, to prevent abuse of court process and given the existence of a pending suit involving the same parties and subject matter, the court exercised its discretion under Section 6 of the Civil Procedure Act to stay the present suit pending the determination of Nakuru HCCC No. 73 of 2006. The preliminary objection was...
Court Disposition
Preliminary objection overruled; suit stayed pending determination of Nakuru HCCC No. 73 of 2006; no order as to costs.
Orders
- The preliminary objection is overruled.
- The suit is stayed pending the determination of Nakuru HCCC No. 73 of 2006.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL SUIT NO. 166 OF 2009
NYANDARUA PROGRESSIVE AGENCIES LTD...................APPLICANT/DEFENDANT
VERSUS
PAUL KURIA WAINAINA.......................................................RESPONDENT/PLAINTIFF
RULING
The respondent in this application is the plaintiff in the main suit. He brought the suit against the present applicant for a declaration that he (the respondent) is the lawful and legal owner of plot Nos. 1252 and 1258 within Nyandarua Progressive Agencies by way of adverse possession. He also seeks that the defendant or the Nakuru District Lands Registrar be ordered to issue title deeds in respect of the two properties to the respondent.
The applicant filed a defence and a notice of preliminary objection way back on 24th July 2007. The applicant has also filed chamber summons dated 4th February 2009 for orders to strike out the suit with costs. Both the chamber summons and the notice of preliminary objection were, by consent set down for hearing on 9th November 2011. On that date, counsel for the respondent did not attend and the hearing proceeded ex parte. Counsel for the applicant only argued the preliminary objection and said nothing about the chamber summons. That course of action may have been informed by the fact that the two are intended to achieve one goal.
The preliminary objection is raised with regard to the suit on the ground that the same is res judicataNakuru HCCC No.73 of 2006 which was dismissed on 14th July 2006 and on subsequent appeal to the Court of Appeal challenging it was also withdrawn; that the suit offends the provisions of the Companies Act and the applicant company’s Articles of Association; that the applicant is non-suited and the dispute ought to be referred to arbitration; that Order XXXVI Rule 3A of Civil Procedure Ruleshas not been complied with.
Being a preliminary objection, no response was filed and since counsel for the respondent did not attend, the arguments by counsel for the applicant were not controverted. However, the respondent had filed a further affidavit in response to the chamber summons in which he answers the averments in the objection. It is deposed that Nakuru HCCC No.73 of 2006 was based on a different cause of action from the present suit hence the same is not res judicata.
Section 7of the Civil Procedure Act provides as is material to the matter as follows:
“7. 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.”
The earlier suit as pleaded is Nakuru HCCC No.73 of 2006, copies of the plaint, defence and the application, the subject of the ruling of 14th July 2006, are on record. It is common ground that the parties and subject matter in Nakuru HCCC No. 73 of 2006 are the same ones in this suit. It is also clear both from the pleadings in this matter and from Nakuru HCCC No. 73 of 2006 record that the suit has not been dismissed or struck out. It is only the respondent’s application for injunction that was dismissed. The last limb to Section 7 aforesaid, namely, that the issue be heard and finally decided, has not been satisfied.
The record of Nakuru HCCC No.73 of 2006 indicates that the applicant’s application seeking the dismissal of the case for want of prosecution is slated for hearing on 28th February 2012. The other matters raised in the notice of preliminary objection cannot be argued within the strictures of Mukisa Biscuits Manufacturing Company LimitedVs. West End Distributors Limited, case. They do not constitute pure points of law. Their consideration will require the ascertainment of certain facts.
For the reasons stated, the preliminary objection is overruled. But having found that the two matters relate to the same subject matter and involve the same parties and in order to prevent the process of this court from being abused, I move under Section 6 of the Civil Procedure Act and order the stay of this suit pending the determination of Nakuru HCCC No. 73 of 2006.
I make no orders as to costs.
Dated, Signed and Delivered at Nakuru this 27th day of January, 2012.
W. OUKO
JUDGE