[2003] KEHC 484 (KLR)
The court found that although the property in dispute is the same as in the previous suit (RMCC 2361 of 2002), the parties and issues are not identical. The previous suit involved different parties (Kibibi Shaibu vs Fatma Abdalla) and sought vacant possession, whereas the current suit concerns whether the defendant...
Source-derived case information.
- Citation
- [2003] KEHC 484 (KLR)
- Parties
- Plaintiff: Omar Said Awah; Plaintiff: Fahima Said Awadh; Defendant: Mwaa Soodi Binti Sahibu Wambuana
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 78 of 2003
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Legal Topics
- Res Judicata, Preliminary Objection, Sub Judice, Pleadings Defects
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Omar Said Awah
Plaintiff
Fahima Said Awadh
Plaintiff
Mwaa Soodi Binti Sahibu Wambuana
Defendant
Procedural Posture
Civil Suit / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit is res judicata due to prior litigation involving the same property.
- 2 Whether the suit is sub judice due to a pending appeal on the same property.
- 3 Whether the plaint is defective for non-compliance with Order VII rule 1 (I) (e) of the Civil Procedure Rules.
Ratio Decidendi
The court found that although the property in dispute is the same as in the previous suit (RMCC 2361 of 2002), the parties and issues are not identical. The previous suit involved different parties (Kibibi Shaibu vs Fatma Abdalla) and sought vacant possession, whereas the current suit concerns whether the defendant is entitled to have the property registered in her personal name. Therefore, the doctrine of res judicata does not apply, and Section 7 of the Civil Procedure Act is not triggered. The preliminary objection is thus dismissed, and the suit may proceed.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASACIVIL SUIT NO. 78 OF 2003
1. OMAR SAID AWAH 2. FAHIMA SAID AWADH ……….…………………… PLAINTIFFS
- VERSUS -
MWAA SOODI BINTI SAHIBU WAMBUANA …..… DEFENDANTS
R U L I N G
The hearing is an application by Chamber Summons dated 15th April, 2003 in which the applicant seeks an order of an injunction. However, the Defendant raised a Preliminary point of objection which if it succeeds may determine the whole suit. The Notice filed on 30th April, 2003 is on the following grounds:
1. That the matter is Res Judicata having been the issue for determination in RMCC. No. 2361 of 2002 Kibibi Shaibu – vs – Fatma Abdalla.
2. That the matter is sub-judice as there is pending an appeal being HCCA No.16 of 2003 Farida Abdalla –vs- Kibibi Shaibu.
3. That the plaint filed herein is defective in that it fails to comply with the provisions of order VII rule 1 (I) (e) of the Civil Procedure Rules.
I have looked at the pleadings in case RMCC 2361 of 2002 which give rise to Appeal HCCA No. 10 of 2003 and note that in that suit the parties were KIBIBI SHAIBU –VS- FATMA ABDALLA in which the claim by the plaintiff was for vacant possession of the same suit properly as in the current one. The current suit the issue for determination as I understand it is whether or not the Defendant is entitled to have the suit properly registered and a certificate issued in her personal names. Even without any further, it is clear at this point that the issues for determination as well as the parties are not the same save for the property in issue.
The issues are therefore not Res-judicata and the provisions of Section 7 of the Civil Procedure Act do not apply. Consequently the Preliminary objection is dismissed.
Dated and Delivered at Mombasa this 11th day of July, 2003. P.M. TUTUI COMMISSIONER OF ASSIZE