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ELCStruck OutNot stated in the judgment· [2018] KEELC 525 (KLR)

Isaac Maina Kamau v Rahab Wangare Gachiengo & another [2018] KEELC 525 (KLR)

High Court of Kenya
14 December 2018
DOD. O. Ohungo
899 words in judgment
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The bottom line

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Kenya's High Court struck out a repeat application for stay of execution, confirming you cannot ask the same court twice for the same relief.

What this practically means

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Executive summary

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This is a ruling by D. O. Ohungo J of the High Court at Nakuru on a preliminary objection dated 11th January 2018 raised by the 1st defendant against the 2nd defendant's Notice of Motion dated 31st October 2017. The application sought to stop M/s Cleverline Auctioneers from selling the 2nd defendant's proclaimed household goods and to stay execution of the decree pending hearing and determination of Nakuru Appeal No. 50 of 2017, in which the 2nd defendant sought extension of time to lodge a Notice of Appeal against the judgment delivered on 9th May 2014. The 1st defendant objected that the application was res judicata, the applicant having earlier filed a similar application which was dismissed on 30th January 2015, contrary to section 7 of the Civil Procedure Act. The court set out the statutory ingredients of res judicata, applied the Court of Appeal's formulation in John Florence Maritime Services Limited, and held that an application is deemed a 'suit' under section 2 of the Act. On the record, the applicant had filed Notice of Motion dated 8th July 2014 in the same suit seeking stay pending appeal, which was heard by L.N. Waithaka J and dismissed in a ruling dated 30th January 2015. The court therefore found the issue of stay pending appeal conclusively determined, upheld the preliminary objection, and struck out the Notice of Motion dated 31st October 2017 with costs to the plaintiff and the 1st defendant.

Key legal issues

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01

Whether the application for stay pending appeal is res judicata under Section 7 of the Civil Procedure Act

Holding

The application is res judicata because the same issue of stay pending appeal to the Court of Appeal was raised and conclusively determined in the earlier application dated 8th July 2014, dismissed by L.N. Waithaka J on 30th January 2015 in the same suit between the same parties.

Reasoning

The court held that res judicata has statutory foundation in section 7 of the Civil Procedure Act, and that an application counts as a 'suit' under section 2. The present application, essentially seeking stay pending appeal, replicated relief sought in the Notice of Motion dated 8th July 2014, which was heard by L.N. Waithaka J and dismissed in a ruling dated 30th January 2015. The parties and the issue being identical, the doctrine barred the fresh application.

p. 2

Legal principles established

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  • An application is deemed to be a suit for purposes of res judicata since 'suit' is defined in section 2 of the Civil Procedure Act to mean all civil proceedings commenced in any manner prescribed
  • For res judicata to apply there must be a previous suit between the same parties or parties litigating under the same title, heard and finally determined by a competent court, with the same issue raised again

Court orders

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  1. 1.The preliminary objection dated 11th January 2018 is upheld
  2. 2.Notice of Motion dated 31st October 2017 is struck out with costs to the plaintiff and the 1st defendant

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure ActSection 2 (definition of 'suit')

Cases cited (1)

  • John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others
    [2015] eKLR
Jurisdiction invoked
Section 7 of the Civil Procedure Act (res judicata)

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, "Isaac Maina Kamau v Rahab Wangare Gachiengo & another [2018] KEELC 525 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/525/eng@2018-12-14

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