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ELCAllowedNot stated in judgment· [2022] KEELC 1631 (KLR)

Kennedy Mokua Ongiri v John Nyasende Mosioma & Florence Nyamoita Nyasende [2022] KEELC 1631 (KLR)

High Court of Kenya
8 February 2022
MKMugo Kamau
3,290 words in judgment
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The bottom line

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Kenya's High Court confirmed you cannot ask the same court twice to set aside the same judgment, even with new evidence.

What this practically means

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Executive summary

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This first appeal challenged a ruling of the Resident Magistrate at Keroka (L.K. Gatheru, delivered by S.K. Arome SRM on 14/12/2018) allowing the respondent's application dated 5/10/2017 for stay of execution and setting aside of a default judgment in Keroka SRMCC No. 142 of 2014. An almost identical application dated 19/2/2015 had earlier been dismissed by N. Kahara RM on 29/04/2015. The only materially new ground in the second application was alleged forgery of the agreement underlying the suit, based on a document examiner's report. The trial magistrate held that although res judicata generally applied, the fraud issue was peculiar to the second application and allowed it, giving the defendant 14 days to file his defence. Mugo Kamau J allowed the appeal. Applying section 7 of the Civil Procedure Act, the court held that the matters in the second application had been directly and substantially in issue and determined in the first; res judicata applies to interlocutory applications within the same suit. Relying on Siri Ram Kaura v M.J.E. Morgan, the court held that mere discovery of fresh evidence on matters open in earlier proceedings does not defeat res judicata; the correct avenues were appeal or review under section 80 and Order 45 rule 1, both now barred by lapse of time and inordinate delay. The second application was held to be res judicata and an abuse of process, inconsistent with Articles 48 and 159(2)(b) of the Constitution. The appeal was upheld, the ruling of 26/10/2018 overturned, and costs awarded to the appellant.

Key legal issues

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01

Whether the second application for stay and setting aside default judgment was res judicata

Holding

Yes; the issues in the application dated 5/10/2017 were directly and substantially in issue in the application dated 19/2/2015 which was heard and determined on 29/04/2015.

Reasoning

The court applied section 7 of the Civil Procedure Act, noting an order in Keroka Civil Case No. 142 of 2014 dated 29/04/2015 in which stay and setting aside the default judgment were heard and determined. Res judicata applies within the same suit. Discovery of fresh evidence on matters open in earlier proceedings is no answer to res judicata; the proper avenues were appeal or review under section 80 and Order 45 rule 1.

p. 4
02

Whether the fraud/forgery ground distinguished the second application from the first

Holding

No; the trial magistrate erred in treating the fraud ground as taking the matter outside res judicata.

Reasoning

The court held that mere discovery of fresh evidence or additional facts going in the same direction toward the same relief cannot found a new application; only a fact which entirely changes the aspect of the case and could not with reasonable diligence have been discovered earlier would suffice. The proper remedy for the alleged fraud was review, which would likely fail for inordinate delay of over two years, or appeal, whose time had lapsed.

p. 4
03

Whether the repeated applications amounted to an abuse of court process

Holding

Yes; the later application was res judicata and an abuse of process, defeating the decree-holder's access to justice.

Reasoning

The court reasoned that the respondent was litigating in circles to frustrate the appellant from realizing the decree, contrary to Articles 48 and 159(2)(b) of the Constitution. Repeated applications on the same issue would leave the appellant forever unable to enjoy the fruits of judgment; there must be an end to interlocutory applications as much as to litigation.

p. 5

Legal principles established

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  • Res judicata under section 7 of the Civil Procedure Act applies to applications within the same suit; a party cannot evade it by raising a substantially similar application already determined.
  • A judicial decision, unless set aside on appeal or review, must be accepted as final and correct and cannot be reopened by a similar application to the same court.
  • In a plea of res judicata only the fact that the issue was decided matters, not the material or reasoning before the court in the earlier decision.

Court orders

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  1. 1.Appeal upheld
  2. 2.Ruling of the learned Resident Magistrate in Keroka dated 26th October 2018 and delivered on 14th December 2018 overturned
  3. 3.Costs of the application awarded to the Appellant

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure ActSection 80
  • Civil Procedure ActSection 89
  • Civil Procedure RulesOrder 45 rule 1
  • Constitution of KenyaArticle 159(2)(b)
  • Constitution of KenyaArticle 48

Cases cited (4)

  • Njangu vs Wambugu and another
    Nairobi HCCC No. 2340 of 1991 (unreported)
  • Siri Ram Kaura – Vs – M.J.E. Morgan
    CA 71/1960 (1961) EA 462
  • Republic – Vs – Attorney General and Another Exparte James Alfred Koroso
  • Uhuru Highway Development Ltd – Vs – Central Bank of Kenya, Exchange Bank Ltd (in voluntary liquidation) and Kamlesh Mansukhlal Pattni
On appeal from
Senior Resident Magistrate's Court, Keroka
SRMCC No. 142 of 2014
Jurisdiction invoked
First appellate jurisdiction over the subordinate court (ruling under appeal delivered 14/12/2018); appeal grounded on section 7 of the Civil Procedure Act Cap 21

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Kennedy Mokua Ongiri v John Nyasende Mosioma & Florence Nyamoita Nyasende [2022] KEELC 1631 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1631/eng@2022-02-08

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