[2012] KEHC 683 (KLR)
The court found that the plaintiff's current application is res judicata because it is substantially similar to two previous applications, one of which was dismissed after a considered ruling with reasons. The court rejected the plaintiff's argument that the previous dismissals were on technicalities, clarifying...
Source-derived case information.
- Citation
- [2012] KEHC 683 (KLR)
- Parties
- Plaintiff: Rossi Renata; Defendant: Fabio Marelli; Defendant: Songhai Investment Ltd; Defendant: Mohamed Essak Bachani
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 61 of 2009
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection
- Outcome
- application struck out as res judicata
- Judges
- CW Meoli
- Legal Topics
- Res Judicata, Preliminary Objection, Striking Out Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rossi Renata
Plaintiff
Fabio Marelli
Defendant
Songhai Investment Ltd
Defendant
Mohamed Essak Bachani
Defendant
Procedural Posture
Civil Suit / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the plaintiff's application dated 3rd September, 2012 is res judicata.
- 2 Whether previous dismissals of similar applications preclude the current application from being heard on its merits.
Ratio Decidendi
The court found that the plaintiff's current application is res judicata because it is substantially similar to two previous applications, one of which was dismissed after a considered ruling with reasons. The court rejected the plaintiff's argument that the previous dismissals were on technicalities, clarifying that the second application was dismissed on its merits due to incompetence and lack of supporting evidence. The court held that the plaintiff was attempting to relitigate issues already determined, and thus the application could not be entertained. The application was accordingly struck out with costs to the respondents.
Court Disposition
application struck out as res judicata
Orders
- The plaintiff's application dated 3rd September, 2012 is struck out as res judicata.
- Costs awarded to the respondents.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
High Court at Malindi
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ROSSI RENATA ….................................................................PLAINTIFF
VERSUS
FABIO MARELLI..........................................................1ST DEFENDANT
SONGHAI INVESTMENT LTD …................................2ND DEFENDANT
MOHAMED ESSAK BACHANI …..............................3RD DEFENDANT
R U L I N G
1. Before the plaintiff's application filed on 3rd September, 2012 could be heard, Mr. Omollo counsel for the defendants raised a preliminary objection to the effect that the application is res judicata. He stated that two similar applications had previously been dismissed by this court. Mr. Otara for the plaintiff/applicant conceded the fact that the present application is similar to the two others filed in the past. He submitted however, that none was heard on merits; the first was dismissed for non appearance of the applicant and the second on a technicality.
2. I have considered the respective submissions in light of the application on the record. I have also considered the ruling of the court in the application filed on 11th October, 2010, delivered on 8th July, 2011. There is no dispute that the applications dated 25th June, 2009, 11th October, 2011 and 3rd September, 2012 are similar and are brought under the same provisions save that the Civil Procedure Rules have now been renumbered.
3. It is not accurate for the applicant to state that none of the applications were heard on merit. The first was dismissed for non appearance but the second was dismissed upon a considered ruling, with reasons. These reasons do not qualify as technicalities. The court found that the application was incompetent and without merit for two main reasons:
1. The application was supported by an affidavit of one Carla Roncarlo rather that the plaintiff herein.
2. There was no basis laid for the prayer seeking security to be furnished in the sum of shs. 9m.
The court stated that had the application been properly supported it would have been granted against the defendants.
By bringing a similar application over a year later, the plaintiff is attempting to have a second bite at the cherry. Her instant application is res judicata and cannot be entertained. It is hereby struck out with costs to the respondents.
Delivered and signed at Malindi this 2ndday of November, 2012 in the presence of: Mr. Otara for the plaintiff/applicant.
Court clerks – Leah & Evans
C. W. Meoli
JUDGE