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ELCStruck OutApplication dated 11th April 2017 in HCCC (Mombasa); former suit High Court Civil Case No. 6 of 2011· [2018] KEELC 2334 (KLR)

Nandlal Jivraj Shah & 2 others v Kingfisher Agencies [2018] KEELC 2334 (KLR)

High Court of Kenya
25 July 2018
AOA. Omollo
1,377 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan High Court struck out a fresh lawsuit over damages from executing a court decree, ruling such claims must be raised in the original case, not a new one.

What this practically means

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Executive summary

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The defendant/applicant moved the court by an application dated 11th April 2017 under sections 1A, 1B and 7 of the Civil Procedure Act and Order 2 rule 15(1)(b)-(d) of the Civil Procedure Rules seeking striking out of the plaintiffs' suit with costs. The application was grounded on res judicata, contending that the issues had been substantially raised and determined in High Court Civil Case No. 6 of 2011 between the same parties. The plaintiffs, through a replying affidavit sworn by Mehul Nandlal Shah, admitted the existence of the former suit but maintained that the facts in issue were substantially different, as they sought compensation for an unlawful and irregular attempted eviction and execution of the decree in the former suit, during which their goods were allegedly destroyed. In the former suit the now-defendant had obtained judgment and executed on 20th September 2013. Justice Omollo held that under section 34 of the Civil Procedure Act, all questions relating to the execution, discharge or satisfaction of a decree must be determined by the court executing the decree and not by a separate suit. The alleged illegality in execution, including destruction of the plaintiffs' business, had been raised in a stay application determined by Kasango J, whose finding amounted to a refusal of that relief; the plaintiffs' remedy was an appeal, not a fresh suit. The court found the suit frivolous and an abuse of process and struck it out with costs to the defendant, also awarding costs of the application.

Key legal issues

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01

Res judicata and section 34 CPA - separate suit over execution of decree

Holding

The suit was barred: claims arising from execution of a decree must be pursued in the suit in which the decree was passed under section 34 CPA; the fresh suit was frivolous and an abuse of process and was struck out under Order 2 rule 15(1)(b)-(d)

Reasoning

The cause of action arose from the execution of the decree in HCCC No. 6 of 2011. Section 34(1) bars a separate suit on questions relating to execution, discharge or satisfaction of a decree. The issue of destruction of property was within the plaintiffs' knowledge while the former suit was active, and under Explanation 5 to section 7 CPA any relief not expressly granted is deemed refused. The proper remedy was an appeal, not a fresh suit.

p. 2

Legal principles established

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  • Questions arising between parties relating to the execution, discharge or satisfaction of a decree must be determined by the court executing the decree and not by a separate suit
  • A party aggrieved by a finding in execution proceedings must appeal rather than file a fresh suit; a fresh claim invites the court to sit on appeal over a court of concurrent jurisdiction

Court orders

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  1. 1.The plaintiffs' suit is struck out with costs to the defendant/applicant
  2. 2.Costs of the application dated 11.4.2017 awarded to the defendant/applicant

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 7, 34
  • Civil Procedure RulesOrder 2 rule 15(1)(b)-(d)
  • Civil Procedure RulesOrder 42 Rule 6

Cases cited (2)

  • Equitorial Commercial Bank Ltd vs Jodam Engineering Works Ltd & 2 others
    (2014) eKLR
  • Mistry Sing vs Kulubya
    (1963) E A 408
Jurisdiction invoked
Sections 1A, 1B & 7 of the Civil Procedure Act and Order 2 rule 15(1)(b)-(d) of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Nandlal Jivraj Shah & 2 others v Kingfisher Agencies [2018] KEELC 2334 (KLR)", Case Analysis (2018). Application dated 11th April 2017 in HCCC (Mombasa); former suit High Court Civil Case No. 6 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2334/eng@2018-07-25

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