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ELCPartially AllowedCivil Case No 287 of 2016· [2020] KEELC 3237 (KLR)

Daniel Kipchirchir Komen v Isaac Kipkemei Terer & Paul’s Cookiemans Ltd [2020] KEELC 3237 (KLR)

High Court of Kenya
5 February 2020
SKS. M. Kibunja
1,301 words in judgment
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The bottom line

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Kenya's High Court struck out a repeat application, ruling that refiling an identical request after dismissal wastes the court's time—seek review or setting aside instead.

What this practically means

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Executive summary

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This ruling by the High Court at Eldoret (S. M. Kibunja, J) determines a preliminary objection dated 18th September 2019 by Isaac Kipkemei Terer, the 1st Decree Holder/Defendant, against a chamber summons dated 12th September 2019 filed by Daniel Kipchirchir, the Judgment Debtor/Plaintiff. The objection raised res judicata under Section 7 of the Civil Procedure Act, want of jurisdiction, and abuse of process, on the basis that the fresh application duplicated an earlier application dated 19th November 2018 which had been dismissed. The court identified two issues: whether the earlier application had been decided so as to render the fresh one res judicata or an abuse of process, and costs. It found that the 19th November 2018 application had been dismissed by the order of 7th February 2019 after the applicant failed to file submissions within seven days, and that the 12th September 2019 mention confirmed the dismissal. Following the Court of Appeal decision in Michael Bett Siror v Jackson Koech, the court held that dismissal for want of prosecution is not a determination on merit, so Section 7 on res judicata was not contravened. However, since the Defendants had already responded to and filed submissions on the earlier application, the proper course was to seek setting aside, review, or extension of time; filing a duplicate application was an abuse of process. The preliminary objection was upheld on that ground, and the chamber summons dated 12th September 2019 was struck out with costs. The court's substantive dispute between the parties over execution remains unresolved by this ruling.

Key legal issues

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01

Whether the chamber summons dated 12th September, 2019 was res judicata under Section 7 of the Civil Procedure Act

Holding

Not res judicata, because the earlier application of 19th November, 2018 was dismissed for want of prosecution, not on merit

Reasoning

The 19th November 2018 application stood dismissed by the order of 7th February 2019 after the applicant failed to file submissions within seven days. The court, following Michael Bett Siror v Jackson Koech, held that dismissal for failure to prosecute is not a decision on merit and therefore cannot found res judicata under Section 7.

p. 2
02

Whether the chamber summons dated 12th September, 2019 was an abuse of the court's process

Holding

Yes; the preliminary objection was upheld on that ground and the application struck out

Reasoning

Although filing a fresh application similar to one dismissed for want of prosecution did not breach Section 7, the correct course was to seek review, setting aside, or extension of time. Filing a duplicate application amounted to an abuse of process, warranting striking out with costs.

p. 2

Legal principles established

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  • Dismissal of a suit or application for want of prosecution is not a determination on merit and does not satisfy the requirements of Section 7 of the Civil Procedure Act on res judicata.

Court orders

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  1. 1.The 1st Defendant's/Decree Holder's preliminary objection dated 18th September, 2019 is upheld
  2. 2.The Judgment Debtor's/Applicant's chamber summons dated 12th September, 2019 is struck out with costs

Authorities

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Legislation

  • Civil Procedure ActSection 7

Cases cited (9)

  • Mukisa Biscuits Manufacturing Company Ltd
    (1969) E. A. 696
  • Omondi Vs National Bank of Kenya & Others
    (2001) KLR 579
  • Uhuru Highway Development Ltd. Vs Central Bank of Kenya & 2 Others
    [1996] eKLR
  • Mburu Kinyua Vs Gachini Tuti
    (1978) KLR 69
  • Independent Electoral and Boundaries Commission Vs Maina Kiai & 5 Others
    Nairobi Court of Appeal Civil Appeal No. 105 of 2017 [2017] eKLR
  • Maithene Malindi Enterprises Limited Vs Kaniki Karisa Kaniki & 2 Others
    Mombasa Court of Appeal Civil Appeal No. 68 of 2016
  • Michael Bett Siror Vs Jackson Koech
    Eldoret Court of Appeal Civil Appeal No. 53 of 2016
  • Salama Beach Hotel Ltd & 3 Others Vs Christopher Orina Kenyariri t/a Kenyariri & Associates Advocates
    Mombasa Court of Appeal Civil Appeal No. 100 of 2017
  • M. W. K. Vs A. M. W.
    Kiambu High Court Case No. 5 of 2016 (OS)
Jurisdiction invoked
Section 7 of the Civil Procedure Act, 2010 (res judicata) invoked in the preliminary objection

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, "Daniel Kipchirchir Komen v Isaac Kipkemei Terer & Paul’s Cookiemans Ltd [2020] KEELC 3237 (KLR)", Case Analysis (2020). Civil Case No 287 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3237/eng@2020-02-05

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