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|Case Number:||Civil Miscellaneous 285 of 2009|
|Parties:||PAUL IMISON v JODAD INVESTMENTS|
|Date Delivered:||25 Nov 2009|
|Court:||High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)|
|Judge(s):||Luka Kiprotich Kimaru|
|Citation:||PAUL IMISON v JODAD INVESTMENTS  eKLR|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
IN THE HIGH COURT OF KENYA
MILIMANI COMMERCIAL COURTS
CIVIL CASE NO. 285 OF 2009
At the hearing of the application, I heard rival submissions made by Mr. Ongicho for the defendant and Mr. Nyaanga for the plaintiff. Mr. Ongicho argued that the suit was res judicata in light of the fact that there was a previous suit filed by the defendant against the plaintiff (i.e. Nairobi HCCC No. 693 of 2000). He explained that in the previous suit, the plaintiff had filed a defence and a counterclaim. The matter was fully heard by Ibrahim J who after hearing the parties delivered his judgment. According to the defendant, since the plaintiff had counterclaim for damages in the previous suit, and since the court had made a finding in his favour, it was not open for the plaintiff to file another suit. Mr. Ongicho submitted that since the judge had directed that damages be assessed by a judge of this court, the only way the plaintiff could assess his damages is in the suit that the order was issued and not by filing a separate suit. It was the defendant's case that in so far as the plaintiffs claim was on the basis of the decision of Ibrahim J, the same was res judicata. It was its view that the present suit contravened the provisions of Section 7 of the Civil Procedure Act and Order II Rule 1(2) of the Civil Procedure Rules. He argued that the plaintiff should not be allowed to litigate his case by installments. He urged the court to find that the present suit was filed in abuse of the due process of the court and should therefore be struck out. He relied on the decision of Pop-In (K) Limited & Others vs Habib Bank A.G. Zurich CA Civil Appeal No. 80 of 1988.
I have read the pleadings filed by the parties to this application in support of their respective positions. I have also carefully considered the submissions made by counsel for the plaintiff and counsel for the defendant. The issue for determination by this court is whether the plaintiff’s suit is res judicata and therefore ought to be struck out with costs. Section 7 of the Civil Procedure Act is clear on the circumstances under which the court will bar a litigant from filing another suit to litigate on issues between the same parties which have been heard and determined by a court of competent jurisdiction. The court of Appeal in Pop-in (K) Ltd & Others vs Habib Bank A.G. Zurich CA Civil Appeal No. 80 of 1988 held at page 4 of its judgment as follows:
`But there is a wider sense in which the doctrine may be appealed to, so that it becomes an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings. The locus classicus of that aspect of res judicata is the judgment of Wilgram V.C. in Henderson vs Henderson (1843) Hare 100, 115, where the judge says:
In the present application, it is not disputed that Ibrahim J in HCCC No. 693 of 2000 did order that an inquiry be made in regard to the appropriate damages that should be paid to the plaintiff as a result of the undertaking that the defendant had given when the interlocutory injunction was granted in favour of the defendant as against the plaintiff prior to the hearing and determination of the suit. Ibrahim J observed in the penultimate page of his judgment as follows:
It was after making this finding that the learned judge ordered inquiry to be made on the damages that were to be paid to the plaintiff. In that respect, it was evident that the cause of action in regard to the damages that are to be paid to the plaintiff arose from the moment the court reached a finding that the defendant was required to honour the undertaking that it had given that it would pay damages to the plaintiff in the event that a finding was reached by the court that the grant of interlocutory injunction pending the hearing of the case was undeserved. The foundation of the plaintiff's cause of action in regard to the damages that he is to be paid is the exercise of discretion by the court in directing the defendant to give an undertaking as to damages. It can therefore be said that the cause of action in regard to the said damages arose the moment the court reached a finding that the grant of interlocutory injunction was without leggy foundation and in the circumstances the defendant was bound by damages to the plaintiff.
DATED AT NAIROBI THIS 25TH DAY OF NOVEMBER 2009