Moruri & another v Ondigo & 4 others (Civil Appeal 103 of 2017) [2021] KECA 79 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you cannot reapply for a court order you already have; repeated injunction applications are barred and cost you money.
What this practically means
#Executive summary
#Key legal issues
#Whether the application dated 8th February, 2016 for injunction, eviction and nullification of title was res judicata
The Court of Appeal affirmed the High Court's finding that the application was res judicata because a similar application had been filed, adjudicated upon and final orders issued, and the injunction orders then granted were still in force.
The appellants had obtained injunction orders from Sitati, J. in an earlier Motion dated 2nd April, 2014; those orders remained in force. Their unsuccessful contempt application before Wakiaga, J. carried liberty to adduce further evidence of breach and file fresh contempt proceedings. Given that open avenue, instituting a fresh injunction application seeking orders already held was barred by Section 7 of the Civil Procedure Act and constituted an abuse of the process of the court.
Whether the succession court was obliged to preserve the estate by granting fresh injunction/eviction orders
Rejection of this ground: preservation was already achieved through the subsisting orders of Sitati, J., and complaints of interference with the estate were to be pursued through fresh contempt proceedings or reported to the police as criminal complaints.
The court endorsed Okwany, J.'s view that where a party alleges continued interference with or intermeddling in the estate contrary to subsisting court orders, the proper course is fresh contempt proceedings, consistent with the liberty expressly granted by Wakiaga, J. Claims of destruction of property, trespass and forgery are criminal in nature and should be presented to the police for investigation and prosecution. The interlocutory merits of the objections were left for the trial court.
Legal principles established
#- Courts are prohibited from trying any suit or issue which has been substantially the issue in a former suit between the same parties or parties under whom they claim.
- A litigant already armed with injunction orders may not return to court for fresh injunction orders; the remedy for alleged breach is contempt proceedings, and a repeat injunction application amounts to an abuse of court process.
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal awarded to the respondents
- On appeal from
- High Court of Kenya at Kisii
- Kisii Succession Cause No. 84 of 2006
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court in a succession cause
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moruri & another v Ondigo & 4 others (Civil Appeal 103 of 2017) [2021] KECA 79 (KLR)", Case Analysis (2021). Civil Appeal (from Kisii Succession Cause No. 84 of 2006). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/79/eng@2021-10-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.