[2007] KEHC 3596 (KLR)
The court found that the application for injunction dated 19 September 2007 was res judicata because a similar application had previously been heard and dismissed by Kuloba, J. The court held that the applicant was seeking the same relief that had already been denied, and therefore the matter could not be...
Source-derived case information.
- Citation
- [2007] KEHC 3596 (KLR)
- Parties
- Plaintiff: Simon Kamanu; Defendant: Mwangi James Njehia; Defendant: Janetta Wanjiku Mwangi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1818 of 2002
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection to Injunction Application
- Outcome
- Application struck out as res judicata; leave granted to file fresh application on interlocutory judgment; costs awarded to respondent/defendant.
- Legal Topics
- Res Judicata, Injunctions, Interlocutory Judgment, Counter Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Kamanu
Plaintiff
Mwangi James Njehia
Defendant
Janetta Wanjiku Mwangi
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection to Injunction Application
Legal Issues
- 1 Whether the application for injunction dated 19 September 2007 is res judicata.
- 2 Whether the application improperly combines prayers for injunction and setting aside interlocutory judgment.
Ratio Decidendi
The court found that the application for injunction dated 19 September 2007 was res judicata because a similar application had previously been heard and dismissed by Kuloba, J. The court held that the applicant was seeking the same relief that had already been denied, and therefore the matter could not be relitigated. Additionally, the court noted that the application improperly combined two distinct prayers—one for injunction and another to set aside interlocutory judgment on the counterclaim. The court struck out the application in its entirety, granting the applicant leave to file a fresh application limited to the issue of setting aside the interlocutory judgment on the counterclaim....
Court Disposition
Application struck out as res judicata; leave granted to file fresh application on interlocutory judgment; costs awarded to respondent/defendant.
Orders
- The application dated 19 September 2007 for injunction is struck out as res judicata.
- Leave is granted to the applicant to file a fresh application on the issue of the interlocutory judgment on the counterclaim.
Full Case Text
Judgment text and source record
41 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 1818 of 2002
1. Land and Environmental Law Division
2. Subject of main suit: Land
i) Original LR 82614
ii) Fraud
3. Application 19 September 2007 for injunction
i) Preliminary Objection –
That application res judicata
4. Held: Application of 19 September 2007, Res judicata
But not on Interlocutory Judgment on counter claim, struck out for a new one to be brought.
Case Law
Advocate:
J. Guserwa for J.A. Guserwa & Co. Advocates for the defendant/applicant
A.N. Mbugua for Mburu Mbugua & Co. Advocates for plaintiffs/respondent
SIMON KAMANU..........…………………………………..PLAINTIFF
VERSUS
MWANGI JAMES NJEHIA……………………….1ST DEFENDANT
JANETTA WANJIKU MWANGI………………….2ND DEFENDANT
RULING
ON A PRELIMINARY OBJECTION TO THE APPLICATION ON 19 SEPTEMBER 2007 AS BEING RES JUDICATA
1: Background of application.
1. The advocate for the plaintiff seeks an injunction against the defendant from interfering and or having any dealings with the suit premises original LR826/14 or at all till the determination of this suit.
2. The advocate for the respondent raises the issues of the application being Res Judicata.
3. The plaintiff is said to have had his property taken away from him fraudulently. The one who did this is now deceased but managed to sell the same to the defendants who are now in occupation.
4) By an application of 16 December 2002 the said applicant filed for an injunction orders. On 10 March 2003 Kuloba, J declined to issue an injunction and dismissed the same.
5) The advocate for the applicant filed this present application to this court on 20 July 2007 for pre-trial mention. It was noted there was an Interlocutory Judgment to a counter claim against the plaintiff. This was in effect to be first dealt with before the matters would continue. Instead the applicant plaintiffs brought an application for an injunction together with an application to set aside the judgment.
6. The respondent raised a Preliminary Objection.
II: Preliminary Objection.
7. The objection raised was to the effect that this matter was heard by Kuloba J who declined to issue an injunction. The applicant seek the same prayers before this court.
III: Finding
8. The application of 19 September 2007 seeking orders of injunction is Res Judicata. It is hereby struck out.
9. There is a prayer for Interlocutory Judgment be set aside. This has to be filed a fresh. The application should not have had two distinct prayers in one application. The same is struck out with leave for the applicant to file a new application on the issue of the counter-claim against them.
10. I award costs to the respondent/defendant.
Dated this 17th day of October 2007 at Nairobi.
M.A. ANG’AWA
JUDGE
J. Guserwa for J.A. Guserwa & Co. Advocates for the defendant/applicant
A.N. Mbugua for Mburu Mbugua & Co. Advocates for plaintiffs/respondent