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ELCAllowedKakamega Civil Appeal No. 148 of 2010· [2017] KEELC 2300 (KLR)

Silas Wanyonyi Nyongesa & 2 others v Paustina Namalwa Simiyu [2017] KEELC 2300 (KLR)

High Court of Kenya
18 July 2017
NMN.A. Matheka
531 words in judgment
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The bottom line

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Kenya's High Court dismissed a duplicate appeal because the same dispute between the same parties had already been decided, awarding costs to the applicant.

What this practically means

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Executive summary

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This was an application dated 16th February (stated as 2915, evidently 2015) brought under Sections 7 and 8 of the Civil Procedure Act by Paustina Namalwa Simiyu seeking dismissal of Kakamega Civil Appeal No. 148 of 2010 as res judicata, together with costs. The applicant contended that on 19th April 2010 Kakamega Civil Appeal No. 83 of 2006 was determined between the same parties; that the said appeal arose out of the Western Provincial Appeals Committee's decision No. 33 of 2003, adopted vide Chief Magistrate's Award No. 6 of 2003 at Kakamega; and that the present appeal was brought against the same decision and was therefore res judicata and an abuse of the court's process. The respondents, though served, did not attend the hearing or file grounds of opposition. The court reproduced Section 7 of the Civil Procedure Act barring a court from trying a matter directly and substantially in issue in a former suit between the same parties, litigating under the same title, in a competent court and finally decided. On a detailed perusal of the court files, Matheka J found that both appeals were between the same parties, arose from the same decision of the Western Provincial Appeals Committee and had the same subject matter. The court held that Kakamega Civil Appeal No. 148 of 2010 was res judicata the judgment in Kakamega Civil Appeal No. 83 of 2006, found the unopposed application to have merit, and granted it as prayed with costs to the applicant. Judgment was delivered, dated and signed at Kakamega on 18th July 2017.

Key legal issues

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01

Res judicata

Holding

The appeal before the court was res judicata having already been determined in Kakamega Civil Appeal No. 83 of 2006.

Reasoning

The court perused the court files and found that on 19th April 2010 Kakamega Civil Appeal No. 83 of 2006 was determined between the same parties. Both appeals arose out of the Western Provincial Appeals Committee's decision No. 33 of 2003, adopted vide Chief Magistrate Award No. 6 of 2003, and both were directed against the same decision with the same subject matter. The application was unopposed, and the court found it had merit and granted it as prayed.

p. 2

Legal principles established

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  • Section 7 of the Civil Procedure Act bars a court from trying a suit or issue that has been directly and substantially in issue in a former suit between the same parties or those under whom they claim, litigating under the same title, in a court competent to try it and finally decided.

Court orders

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  1. 1.The appeal, Kakamega Civil Appeal No. 148 of 2010, is dismissed as res judicata the decision in Kakamega Civil Appeal No. 83 of 2006
  2. 2.Costs of the application awarded to the applicant

Authorities

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Legislation

  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 7
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 8
Jurisdiction invoked
Sections 7 and 8 of the Civil Procedure Act (Chapter 21, Laws of Kenya)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Silas Wanyonyi Nyongesa & 2 others v Paustina Namalwa Simiyu [2017] KEELC 2300 (KLR)", Case Analysis (2017). Kakamega Civil Appeal No. 148 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2300/eng@2017-07-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.