Jason Gitimu Wang’ara v Martin Munene Wang’ara & 13 others [2018] KEELC 4590 (KLR)

Order 42 Rule 6(2)(a) requires that the application be made without unreasonable delay and that substantial loss be shown. The judgment of 26th August 2013 and ruling of 20th March 2015 were delivered four and two years before the application. No evidence of substantial loss was adduced; the earlier rulings had already found no intention to dispose of the land where the defendants have lived all their lives. Further, the sub-division ordered by the Court had been effected and the plaintiff is a beneficiary of some resultant parcels, leaving nothing to stay.

The discretion to set aside an order exists to avoid injustice from accident, inadvertence or excusable mistake, not to assist a party deliberately misleading the Court or obstructing justice. In the ruling of 28th July 2017 the Court had already found the plaintiff undeserving because he falsely claimed the application of 13th January 2014 was unserved. The impugned ruling was also made after hearing all parties, not ex-parte. In light of the plaintiff's lack of candour, the Court declined to exercise its discretion in his favour.

Section 7 of the Civil Procedure Act bars any suit or issue directly and substantially in issue in a former suit between the same parties that was heard and finally decided. Citing Ringera J in Kanorero River Farm Ltd and the Court of Appeal in Uhuru Highway Development Ltd, the Court held the doctrine applies to applications within a suit. The inhibition prayer had been dismissed on 28th July 2017; although three additional parcels were now included, the matter was directly and substantially in issue previously, and repeating it amounts to an abuse of process.