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ELRCAllowedCause No 1710 of 2013· [2024] KEELRC 1081 (KLR)

Maingi v Sen-Tech Limited; KHS East Africa Limited (Objector) (Cause 1710 of 2013) [2024] KEELRC 1081 (KLR)

Employment and Labour Relations Court
13 May 2024
3,427 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a repeat objection to asset attachment, confirming courts will not allow parties to re-litigate issues they have already lost.

What this practically means

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Executive summary

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This is a ruling on the Claimant/Decree-Holder's Notice of Preliminary Objection dated 6th March 2024 seeking to strike out the Objector's Notice of Objection to Attachment and Notice of Motion, both dated 5th March 2024, on three grounds: non-compliance with Order 9 Rule 9 of the Civil Procedure Rules by the incoming firm Litoro & Omwebu Advocates, res judicata, and abuse of process. The Objector, whose goods had been proclaimed in attachment of a decree against SenTech Ltd, had previously lost an objection and application dated 2019 (dismissed with costs on 12th May 2022) and an application for review and stay (dismissed on 2nd November 2023). The court applied the Mukisa Biscuits definition of a preliminary objection and held that although an Objector is not privy to the suit such that Order 9 Rule 9 does not strictly apply, objection proceedings are a continuation of proceedings, and in any event the Objector's counsel had filed the requisite notices of appointment and change in February 2021. On res judicata, applying Section 7 of the Civil Procedure Act, Henderson v Henderson, and the essentials restated in IEBC v Maina Kiai, the court found the 2024 objection and motion substantially identical to the issues already determined in the rulings of 12th May 2022 and 2nd November 2023, between the same parties under the same title, with the Objector attempting to supply evidence it earlier failed to avail. The preliminary objection was upheld and the Notice of Objection and Notice of Motion were struck out with costs.

Key legal issues

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01

Whether the preliminary objection raising Order 9 Rule 9 non-compliance was a competent pure point of law

Holding

The objection failed on this limb because the Rule does not apply to an Objector who is not privy to the suit, and the Objector's counsel had in any event filed notices of appointment and change of advocates.

Reasoning

The court applied Mukisa Biscuits on the definition of a preliminary objection. It held that Order 9 Rule 9 governs change of advocates after judgment by parties to the suit; an Objector is not a Decree-Holder or Judgment-Debtor and is not privy to the suit. Further, objection proceedings are a continuation of proceedings, so compliance was not an imperative, and counsel had filed the requisite notices in February 2021.

p. 3
02

Whether the Objector's Notice of Objection and Notice of Motion dated 5th March 2024 were res judicata

Holding

Yes. The documents replicated the earlier objection and application already heard and determined in the Rulings of 12th May 2022 and 2nd November 2023 between the same parties under the same title.

Reasoning

Applying the essentials of res judicata from Section 7 of the Civil Procedure Act, Henderson v Henderson and IEBC v Maina Kiai, the court found the issues in the 2024 objection and motion substantially identical to those determined earlier, namely the Objector's distinct legal personality and its alleged legal or equitable interest in the proclaimed assets, save for a factual claim that the warrants had lapsed. The Objector was attempting to furnish evidence it failed to avail earlier; litigation must come to an end.

p. 7

Legal principles established

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  • An Objector is not a party to the suit and only comes to court to object to execution; Order 9 Rule 9 compliance obligations must first be shown to apply to such a person.
  • Objection proceedings and applications for stay of execution are a continuation of proceedings, not commencement of new proceedings, and re-litigation of issues already determined therein is res judicata.
  • Litigation must come to an end and a party may not have a second bite at the cherry by re-filing substantially identical applications.

Court orders

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  1. 1.The Notice of Preliminary Objection dated 6th March, 2024 is upheld.
  2. 2.The Notice of Objection to Attachment and the Notice of Motion both dated 5th March, 2024 are struck out with costs.

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 9 Rule 9 (referred to as Order 9(a))
  • Civil Procedure Rules, 2010Order 1 Rule 1
  • Civil Procedure Rules, 2010Order 21 Rule 1
  • Civil Procedure ActSection 7
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (13)

  • Henderson V Henderson
    (1843) 67 ER 313
  • Milka Njeri Thuo & another v Pauline Gikera & another
    [2018] eKLR
  • Paul Mwaua Mwqangi v Francis Muamba Kimeru & another
    [2019] eKLR
  • Nzeli Maweu v Christine Katoto Masila
    [2021] eKLR
  • Sella Rose Anyango v Attorney General & 2 others
    [2021] eKLR
  • Independent Electoral & Boundaries Commission v Maina Kiai & others
    [2017] eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd
    [1969] EA 696
  • Tobias Wafubwa v Ben Butali
    [2017] eKLR
  • Precast Portal Structures v Kenya Pencil Company Ltd & 2 others
    [1993] eKLR
  • Stephen Kiprotich Koech v Edwin K. Barchilei, Joel Sitienei (Objector)
    2019 eKLR
  • George W. M. Omondi & another v National Bank of Kenya Ltd & 2 others
    [2001] eKLR
  • John Florence Maritime Services Ltd & another v Cabinet Secretary for Transport & Infrastructure & 3 others
    [2015] eKLR
  • Gerald Kithu Muchanje v Catherine Muthoni Ngare & another
    [2020] eKLR
Jurisdiction invoked
First-instance jurisdiction over the suit and a preliminary objection raised therein; Article 159(2)(d) and Article 48 of the Constitution invoked in the delivery orders

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, "Maingi v Sen-Tech Limited; KHS East Africa Limited (Objector) (Cause 1710 of 2013) [2024] KEELRC 1081 (KLR)", Case Analysis (2024). Cause No 1710 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1081/eng@2024-05-13

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