[2009] KEHC 3186 (KLR)
The court found that although the parties and the property in question are the same in both suits, the causes of action and reliefs sought are different. The previous suit (HCC No.252 of 1991) was dismissed on a technicality and was not heard and finally determined on its merits. The present suit seeks different...
Source-derived case information.
- Citation
- [2009] KEHC 3186 (KLR)
- Parties
- Plaintiff: Samuel Muthia Magua; Defendant: American Life Insurance Co. Ltd.
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 331 of 2005
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection overruled
- Legal Topics
- Res Judicata, Preliminary Objection, Mortgage Redemption, Breach of Contract
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Muthia Magua
Plaintiff
American Life Insurance Co. Ltd.
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the present suit is barred by the doctrine of res judicata due to previous proceedings between the same parties over the same property.
- 2 Whether the causes of action and reliefs sought in the two suits are substantially the same.
Ratio Decidendi
The court found that although the parties and the property in question are the same in both suits, the causes of action and reliefs sought are different. The previous suit (HCC No.252 of 1991) was dismissed on a technicality and was not heard and finally determined on its merits. The present suit seeks different reliefs, specifically a declaration on redemption of the mortgage and a refund or accounting, as opposed to general damages for breach of contract in the earlier suit. Therefore, the doctrine of res judicata does not apply, and the preliminary objection is overruled.
Court Disposition
preliminary objection overruled
Orders
- The preliminary objection is overruled with costs to the plaintiff.
- The suit shall proceed to hearing on a priority basis.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Case 331 of 2005
SAMUEL MUTHIA MAGUA ………………………...… PLAINTIFF
VERSUS
AMERICAN LIFE INSURANCE CO. LTD. ……… DEFENDANT
R U L I N G
Preliminary Objection dated 2/2/09 that the suit is res judicata raising issues which were substantially in issue in previous proceedings in HCC No.252 of 1991 – Samuel Muthia Magua vs. American Life Insurance Co. (Kenya) Ltd. Same issues were directly in issue in previously instituted suit between same parties.
In the present case the defendant states that issues were same between same parties. In HCC No. 331/05 was another suit filed without regard to Section 7 of Civil Procedure Act while the other suit has been heard and finally decided. The issues are the same that the defendant is threatening to exercise its power of sale in respect of same charge and same property. However, it is shown that the suit HCC No.252/1991 was dismissed on technicality before finally being heard and determined.
The plaintiff opposes the Preliminary Objection by submitting that HCC No. 252/1991 was a claim for general damages for breach of contract, interest on the claims at court claims. In HCC 331/05 seeks declaration on the issue of redemption of the mortgage refund of Kshs.468,171/02 or alternative a true account be rendered on costs and interest. The claims are quite different.
It is clear parties are the same and the property is the same but the cause of action is different. I have perused the authorities relied upon on both sides and the well written submissions of parties. I am convinced that although the parties are same and property subject to charge are same, the subject matter of the two suits are not the same. The reliefs claimed are different. They could not have been argued together because there is great difference in the time span.
In the circumstances, the Preliminary Objection is overruled with costs. The suit should proceed to hearing on priority basis as it is said the plaintiff is sickly.
Orders accordingly.
DATED, SIGNED and DELIVERED at Nairobi this 17th day of July, 2009.
JOYCE N. KHAMINWA
JUDGE