Please Wait. Searching ...
|Case Number:||Civil Appeal 37 of 2012|
|Parties:||Mombasa Maize Millers Limited v Hassan Sura Dele & Mohamed Jaleh & Co. Limited|
|Date Delivered:||17 Oct 2013|
|Court:||High Court at Mombasa|
|Judge(s):||Mary Muhanji Kasango|
|Citation:||Mombasa Maize Millers Limited v Hassan Sura Dele & another  eKLR|
|Case History:||This is an appeal against judgment of the Principal Magistrate's Court in Mombasa being Civil Case No. 812 of 2008|
|History Docket No:||Civil Case No. 812 of 2008|
|Case Outcome:||Application dismissed|
|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|
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
CIVIL APPEAL NO. 37 OF 2012
MOMBASA MAIZE MILLERS LIMITED ……...….. APPELLANT/APPLICANT
V E R S U S
HASSAN SURA DELE …………………….………………. 1ST RESPONDENT
MOHAMED JALEH & CO. LIMITED …………………….. 2ND RESPONDENT
“No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”
That Section prohibits a party reopening a subject matter that had been the subject of a previous determination. This was well stated in the case HENDERSON -VS- HENDERSON (1843-60) ALL E.R. 378 in that case the Court stated-
“… where a given matter becomes the subject of litigation in, and of adjudication by a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special case, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time.”
“That the second application was res judicata since the facts on which it was based were known to the Appellant at the time when he made the first application.”
above. That Section requires a party to bring before a Court its whole case. A party is not permitted to bring before Court his case in piece meal.
LTD -VS- CENTRAL BANK OF KENYA & 2 OTHERS CIVIL APPEAL NO. 36 OF 1996 added its voice on this issue by stating-
“What is before us is: can a matter of interlocutory nature decided in one suit be subject of another similar application in the same suit? Does the principle of res judicata apply to an application heard and determined in the same suit?
… There is no doubt at all that provisions of Section 7 of our Civil Procedure Act relating to res judicata in regard to suits do apply to applications for execution of decrees but there is no doubt, also, that these provisions are governed by principles analogous to those of res judicata.
… There is not one case cited to show that an application in a suit once decided by courts of competent jurisdictions can be filed once again for a rehearing. This shows only one intention on the part of the legislature in India and our Civil Procedure Act. That is to say, there must be an end to applications of similar nature; that is to say further, wider principles of res judicata apply to applications with the suit. If that was not the intention, we can imagine that the Courts could and would be inundated by new applications filed after the original one was dismissed. There must be an end to interlocutory applications as much as there ought to be an end to litigation.”
Motion it is argued that the first Motion was dismissed on a technicality. Justice Mwera (as he then was) by his ruling of 17th October 2012 had this to say in respect of that first Motion-
“However, the Respondents added that the appellant/applicant had not demonstrated what substantial loss it stood to suffer if the stay order was not granted and there being no decree to execute, this application was considered premature. In that connection the case of Illiana Ingasiali Regina & Another vs. Likhanga Shikani & Another (2005)eKLR was cited in that Order XLI Civil Procedure Rules, (now Order 42) could only be invoked where a decree/order has been issued and therefore execution was imminent. And thus where neither a decree has been extracted nor the order extracted, such an application as presented by the applicant is premature and ought to be dismissed. That was the view of Gacheche J on 18th July, 2005 sitting at Eldoret. This court concurs with that position and accordingly dismisses this application with costs.”
not permit a party to litigate a matter or issue which was determined previously. In the previous Motion the Appellant submitted that it would suffer substantial loss if stay was not granted. Similarly, in the Motion being considered now in this ruling it was submitted that if stay was not granted the Appellant would suffer substantial loss.
for stay pending appeal was dismissed on 17th October 2012 by Justice Mwera. Dismissal unlike a striking out is final and the only option open to a party is to file an appeal against such dismissal. This was clearly stated in the case MBURU KINYUA (supra) where the Court stated –
“That, although the judge had not referred in his ruling on the first application to the appellant’s application to file a further affidavit, the appropriate mode of testing the judge’s decision on that application was to appeal against his ruling rather than to make another application.”
have tested the ruling of 17th October 2012 by appealing the Court of Appeal. It is for the reasons stated above that the Notice of Motion dated 6th November 2012 is dismissed with costs to the first Respondent for being res judicata.
Dated and delivered at Mombasa this 17th day of October, 2013.