1.The Defendant has invoked Regulation 10 of the Judicial Service Code of Conduct and Ethics (Regulations) 2020 amongst other provisions of the law to impugn the decree in this matter. In the Notice of Motion dated 21st February 2021, it seeks an order that the decree issued on 13th November 2020 be set aside together with all consequential orders. The application is supported by the affidavit of is director, Francis Muhoho Gachanja, sworn on 21st February 2022 and opposed by the 1st Plaintiff through his affidavit sworn on 7th March 2022.
2.Although the grounds set out on the face of the application are rather prolix, the thrust of the application is that events leading to the entry of the default judgment and issuance of the decree against it were done ex-parte. It states that the Plaintiffs’ advocates engaged in exparte communication with the Deputy Registrar as its advocates were not copied in the email correspondence. That the Deputy Registrar engaged in private communication with the Plaintiffs’ counsel and failed to acknowledge the Defendant’s advocate’s correspondence on the matter. The Defendant contends that as a result of unethical conduct, its rights were violated leading to a serious miscarriage of justice.
3.In answer to the application, the Plaintiffs contend that the issue of validity of the decree was dealt with when it filed and prosecuted its application dated 17th February 2021 leading to a ruling delivered on 17th March 2021. It therefore avers that the since the validity of the decree was in issue, the issues now raised by the Defendant ought to have been raised at the material time. It therefore urges that the application is res judicata.
4.I have considered the arguments on both sides and I take the following view of the matter. While the Defendant is entitled to raise breach of the Judicial Service Code of Conduct, in this case, the accusation is against the Deputy Registrar who must be heard on the matter before an adverse finding is made against her. I also agree with the Plaintiffs that the application is res judicata as this court adjudicated upon the validity of the decree in the ruling dated 17th March 2021 and rejected the submission that the decree was irregular. The facts now placed before the court were available to the court and the Defendant at the time the Defendant made the application hence this application is res judicata and an abuse of the court process.
5.I also find and hold that the decree issued in this case conforms with the judgment, is regular and has been partly executed.
6.The Notice of Motion dated 21st February 2022 is dismissed with costs to the Plaintiffs. The costs are assessed at KES. 20,000.00 only.
DATED AND DELIVERED AT NAIROBI THIS 13TH DAY OF JUNE 2022.D. S. MAJANJAJUDGECourt Assistant: Mr M. OnyangoMr Mbobu with him Mr Otenyo instructed by Makhandia and Makhandia Advocates for the Plaintiffs.Mr Mungai instructed by Mungai Kalande and Company Advocates for the Defendant.