Moses Ondiegi Okoth v Jonathan Orengo Obiayo

High Court, at Kisumu July 6, 1995

Kuloba J

Civil Case No 322 of 1992

Civil Practice and Procedure – pleadings – striking out – doctrine of res judicata – where same parties, same matter and same points arise as arose in earlier case – whether suit barred by doctrine of res judicata.

This was an application for an order that the suit be struck out on the ground that it was barred by the doctrine of res judicata, the Court of Appeal having decided the same matter between the same parties in Civil Appeal No 146 of 1990.

It was conceded that the parties were the same parties in the Court of Appeal over a matter which arose in the High Court at Kisumu in HCCC No 138 of 1987.

The issue was whether the point that was not expressly granted by the decree, should be deemed to have been refused, and therefore barred by the doctrine of res judicata in the present case.

Held:

1. The same point that arose in the earlier case is arising again in the present suit.

2. Any matter which ought to have been decided in the former suit is deemed to have been in issue and determined.

3. The doctrine of res judicata applies.

Suit dismissed.

Cases

No cases referred.

Statutes

1. Civil Procedure Act (cap 21) section 7

2. Registered Land Act (cap 300) section 143(1)