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ELCStruck OutChief Magistrate's Civil Suit (transferred to High Court, Nakuru), Notice of Motion dated 26th August 2019· [2019] KEELC 236 (KLR)

Benjamin Akenga v Samson Keengu Nyamweya [2019] KEELC 236 (KLR)

High Court of Kenya at Nakuru
4 December 2019
2,025 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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You cannot file a new lawsuit to enforce orders a Kenyan court already made — enforce them in the original case or lose.

What this practically means

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Executive summary

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This ruling of the High Court at Nakuru (D. O. Ohungo, J) dealt with the plaintiff's Notice of Motion dated 26th August 2019 seeking eviction of the defendant from Nakuru Municipality Block 16/102, a permanent injunction against trespass, and police assistance in execution. The plaintiff, registered proprietor of the suit property and sole shareholder of Olympia Hospital (K) Limited, claimed the defendant had frustrated completion of hospital construction since 1997, relying on prior orders and judgments including the judgment of 4th March 2015 in Nakuru High Court Civil Suit No. 265 of 2011. The defendant opposed, arguing the application duplicated the main suit and that the matter was res judicata given the 2015 judgment. The court first addressed res judicata as a jurisdictional issue under Section 7 of the Civil Procedure Act, applying John Florence Maritime Services and Henderson v Henderson. It found the parties and subject matter identical to Civil Suit No. 265 of 2011, where issues of eviction and of monies allegedly spent on the hospital project had already been determined. Both the plaintiff's suit and the defendant's counterclaim were therefore struck out as res judicata. The court declined to consider the motion's prayers, held that prior orders must be enforced in the proceedings where they were made, and ordered each party to bear its own costs.

Key legal issues

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01

Whether the suit and counterclaim are res judicata

Holding

Yes - the issues of eviction from Nakuru Municipality Block 16/102 and of monies allegedly spent on the hospital project were determined in Nakuru HCCC No. 265 of 2011, and neither party can re-litigate them in a fresh suit

Reasoning

The parties in this suit were parties in Nakuru High Court Civil Suit No. 265 of 2011, litigating under the same title over the same property. The issues of eviction and of the defendant's claimed expenditure were in issue and determined in that suit, which was heard and decided by a competent court on 4th March 2015. Section 7 of the Civil Procedure Act therefore bars both the plaintiff's suit and the defendant's counterclaim. Any dissatisfied party should have appealed or sought review.

p. 2
02

Enforcement of orders from prior suits

Holding

Orders made in previous suits must be enforced in those proceedings, not through a fresh suit

Reasoning

The plaintiff described himself as coming to 'harvest' the fruits of prior judgments and orders. The court held that such harvesting can only be done from the tree that was planted - i.e., within the particular proceedings where the orders were made. Bringing a new suit to enforce prior orders is precisely the kind of duplication res judicata is designed to curb.

p. 3

Legal principles established

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  • Res judicata bars a fresh suit on issues already finally decided by a competent court between the same parties; parties must enforce prior orders in the proceedings in which they were made, not by fresh suit
  • Litigants must bring their entire claims for determination once and for all

Court orders

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  1. 1.The plaintiff's suit is struck out
  2. 2.The defendant's counterclaim is struck out
  3. 3.Each party shall bear own costs

Authorities

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Legislation

  • Civil Procedure ActSection 7

Cases cited (3)

  • John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others
    [2015] eKLR
  • Maithene Malindi Enterprises Limited v Kaniki Karisa Kaniki & 2 others
    [2018] eKLR
  • Henderson v Henderson
    [1843] 67 ER 313
Jurisdiction invoked
Transfer from the Chief Magistrate's Court at Nakuru following the court's ruling of 31st July 2019 in Nakuru High Court Civil Suit No. 265 of 2011 (counterclaim exceeding pecuniary jurisdiction of the subordinate court)

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, "Benjamin Akenga v Samson Keengu Nyamweya [2019] KEELC 236 (KLR)", Case Analysis (2019). Chief Magistrate's Civil Suit (transferred to High Court, Nakuru), Notice of Motion dated 26th August 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/236/eng@2019-12-04

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