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ELCDismissedNot stated in the judgment excerpt· [2021] KEELC 2351 (KLR)
Green Belt Ware House Limited v Abdullahi Mohamed Sheikh [2021] KEELC 2351 (KLR)
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·~3 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#The defendant filed a Notice of Motion dated 20th January 2020 seeking a stay of execution of the ruling and orders issued by the court on 11th December 2019. The plaintiff responded with a preliminary objection dated 10th June 2020 on three grounds: that the application was res judicata because it sought reliefs already dealt with in the defendant's applications dated 26th September 2019 and 10th December 2019; that it was fatally defective for failure to attach the decision sought to be stayed; and that it was vexatious and an abuse of process. With the consent of the parties, the preliminary objection was heard first by way of written submissions. The plaintiff relied on Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd, IEBC vs Jane Cheperenger, Ukay Estate Ltd vs Shah Hirji Manek Ltd, James Kariuki Nganga vs Josephat Ngae Njuguna and Orion East Africa Ltd vs Eco Bank Kenya Ltd, and on Section 7 of the Civil Procedure Act. The defendant filed no submissions. Reviewing the record, the court noted that the application of 26th September 2019 seeking stay and consolidation with High Court Commercial & Tax Division Civil Suit No. 501 of 2016 was dismissed for lack of merit in a ruling delivered on 11th November 2019, and that a further application of 10th December 2019 had also been filed before the defendant lodged the impugned application. Agreeing with the plaintiff, the court found the application res judicata and an abuse of the court process, upheld the preliminary objection, and dismissed the Notice of Motion dated 20th January 2020 with costs to the plaintiff.
Key legal issues
#01
Whether the defendant's Notice of Motion dated 20th January 2020 is barred by res judicata
Holding
The preliminary objection is upheld and the application dismissed with costs
Reasoning
The court reviewed the record and found the defendant had earlier filed a Notice of Motion dated 26th September 2019 seeking similar orders, which was dismissed for lack of merit on 11th November 2019, followed by a further Notice of Motion dated 10th December 2019. Filing a third application seeking similar orders amounted to re-litigating matters already directly and substantially in issue between the same parties, contrary to Section 7 of the Civil Procedure Act.
p. 2
Legal principles established
#- An application seeking reliefs already directly and substantially in issue and finally decided in prior applications between the same parties is res judicata under Section 7 of the Civil Procedure Act and an abuse of the court process
Court orders
#- 1.The preliminary objection dated 10th June 2020 is upheld
- 2.The Notice of Motion dated 20th January 2020 is dismissed with costs to the plaintiff/respondent
- Jurisdiction invoked
- Original civil jurisdiction; Section 7 of the Civil Procedure Act (res judicata)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Green Belt Ware House Limited v Abdullahi Mohamed Sheikh [2021] KEELC 2351 (KLR)", Case Analysis (2021). Not stated in the judgment excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2351/eng@2021-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.