[2001] KEHC 548 (KLR)
The court found that the doctrine of res judicata did not apply because the material damage claim could not have been brought in the earlier suit before the magistrate's court due to lack of pecuniary jurisdiction. The plaintiff was entitled to file the material damage claim in a court with the requisite...
Source-derived case information.
- Citation
- [2001] KEHC 548 (KLR)
- Parties
- Plaintiff: Samuel Karimi Mubea; Defendant: Central Drug Company Ltd. and Another
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 2817 of 1998
- Procedural Posture
- Civil Application / Ruling on Application to Strike Out Plaint
- Outcome
- application dismissed with costs
- Legal Topics
- Res Judicata, Striking Out Plaint, Jurisdiction, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Karimi Mubea
Plaintiff
Central Drug Company Ltd. and Another
Defendant
Procedural Posture
Civil Application / Ruling on Application to Strike Out Plaint
Legal Issues
- 1 Whether the present suit is barred by the doctrine of res judicata due to the plaintiff's earlier suit in the magistrate's court.
- 2 Whether the material damage claim could have been included in the earlier suit given the magistrate's court's pecuniary jurisdiction.
- 3 Whether the application is fatally defective due to the supporting affidavit being sworn by a stranger to the suit.
Ratio Decidendi
The court found that the doctrine of res judicata did not apply because the material damage claim could not have been brought in the earlier suit before the magistrate's court due to lack of pecuniary jurisdiction. The plaintiff was entitled to file the material damage claim in a court with the requisite jurisdiction. Furthermore, the application to strike out the plaint was fatally defective as the supporting affidavit was sworn by a person who was a stranger to the litigation, rendering the application unsupported by a valid affidavit. Consequently, the application was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application to strike out the plaint is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL CASE NO. 2817 OF 1998
SAMUEL KARIMI MUBEA …………………………………..PLAINTIFF
VERSUS
CENTRAL DRUG COMPANY LTD.
AND ANOTHER ………………………………………….DEFENDANTS
RULING
This application dated and filed in court on 12th June 2000 seeks an order of this court to strike out the plaint dated and filed in court on 18th December 1999.
Grounds upon which the application is based are stated in the application and the supporting affidavit. These grounds and the affidavit raise the principle of res judicata in that though the claim subject to the present suit arose out of an accident which occurred on 2. 1.96, when the plaintiff filed RMCC No. 592 of 1997 at Kiambu Resident Magistrates Court, he failed to include the claim now subject to the present suit, therein.
In court on 20th January 2001 counsel for the applicant repeated the same and referred the court to Section 7 of the Civil Procedure Act and Civil Appeal No. 80 of 1988 (court of appeal); amongst others.
Counsel for the respondent opposed the application and said while the claim in the Kiambu Case involved personal injuries to the respondent the present one involves damage his motor vehicle in the same accident and that the material damage claim could not have been claimed in the Kiambu Court for lack of jurisdiction.
The decision in Yat Tung Investment Co. Ltd. and Another [1975] AC 581 cited herein which persuaded our court of appeal to make its decision in Pop-in (Kenya) Limited & 3 others v Habib Bank A.G. ur ich (Civil Appeal No. 80 of 1988)was that:-
“it becomes an abuse of the process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings.”
And in Herderson v Herderson (1843) HARE 100, 115 it was stated that:-
“where a given matter becomes the subject of litigation in, and of adjudication by a court of competent jurisdiction , the court requires the parties to that litigation to bring forward their whole case - - - - - emphasis mine.
Comparing facts of the present case and those quoted, it is apparent they can be distiquished in that material claims made herein could not have been made the subject of litigation in the Resident Magistrate’s Court at Kiambu for lack of pecuniary jurisdiction.
Going the other way round, though the respondent would have combined the personal and material claims together to file the suit in the High Court, his failure to do so does not deprive him the right to file the material claim in the court with the requisite jurisdiction to entertain and dispose of the same.
Moreover, the deponent to the supporting affidavit to this application is a stranger to this litigation, and the application is as if not supported by an affidavit, hence fatally defective.
I dismiss this application with costs.
Delivered and dated this 9th day of January 2001.
D.K.S. AGANYANYA
JUDGE