RULING:
2. I have compared the said motion to the previous motion filed by the applicant dated 22nd August, 2022, and considered the same in detail. I have also considered the ruling delivered by my brother Mwita, J. issued on 27th October, 2023.
3. The applicant submitted that the present matter emanated from the deed of settlement which was not an issue in the previous application.
4. The respondent on its part submitted that the entire application is res judicata. Counsel further stated that the application before the court of appeal has not been filed at present, and is therefore, not before the court. He further submitted that any grant of an injunction would accordingly be indefinite, and an abuse of court if granted.
5. Having considered the submissions as stated above, I find that the issues raised in the present application, including the issues relating to the deed of settlement have been dealt with in full, and conclusively. Looking at the said ruling issued on 27th October 2023, the learned judge’s reasoning in relation to the same is set out at paragraphs 64 to 72 of the said ruling in great detail.
6. Moreover, nothing material appears to have changed since then to warrant granting the prayers sought in the present application.
7. The law as regards, res judicata is well settled as pronounced in Pop-in (Kenya) Ltd & 3 others vs Habib Bank AG Zürich (1990) KLR 609 which is the milestone decision. In that case the Court held inter-alia:
"…. The plea of res judicata applies not only to points which the court was actually required by the parties to form an opinion and pronounce judgement, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have been brought forward at the time."
8. Further with regard to the matter being res judicata, section 7 of the Civil Procedure Act provides that:
"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."
Explanation (4) of that section further provides that:
"Any matter which might and ought to have been made a ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit."
9. From the above, it is clear that the court will not deliberate on a matter that has been directly and substantially in issue in a previous suit. Further, a matter that the party to the suit ought by reasonable diligence, to have raised in the former suit, will be deemed as determined by the court in that suit.
10. Looking at the ruling dated 27th October 2023, I have no doubt that the matters raised by the Applicant have been raised several times in previous proceedings, and that the court has found severally that those issues, being the same issues raised in the present motion are res judicata. In short, this is not the first time that a court of concurrent jurisdiction has pronounced itself on the issues raised in the present motion.
11. As my brother Havelock, J stated, litigation must necessarily come to an end and our courts, busy enough as they are, do not need to be burdened with repeated applications of the same nature.
12. As a consequence, I dismiss the Plaintiff’s Notice of Motion dated 10th November 2023 with costs to the Respondent.