1. This brief ruling determines the issue of whether this Court ought to grant the prayers sought in Motion application dated 13th September 2024.
2. I clutch my pearls as I draft this ruling as the conduct of the Plaintiffs and their counsel is unbecoming.
3. A brief history of this instant matter is that vide application dated 20th February 2023, the Plaintiffs herein sought similar prays as contained in the instant motion application and this Court vide its ruling dated and delivered on 31st July 2023, found the same application devoid of merit and proceeded to have the same dismissed.
4. The Plaintiffs proceeded to file an application at the Court of Appeal to stop the intended sale of their property pending hearing and determination of their intended appeal against the ruling of this Court as delivered on 31st July 2023. The Court of Appeal granted the Plaintiffs the temporary injunction on the condition that they pay the 1st Respondent 25% of the debt within 30 days as per the 1st Respondent’s policy. On 25th October 2023, the Court of Appeal dismissed the Plaintiffs stay application.
5. At the lapse of the 30 days the 1st Respondent was at liberty to proceed with a new public auction following an advertisement of the sale without serving new statutory notices to the Applicants and this prompted the motion application dated 13th September 2024.
6. The Notice of Motion application dated 13th September 2024, demonstrates a clear disregard of doctrine of res judicata which is a legal principle that prevents the re-litigation of issues that have already been adjudicated by a competent Court. This doctrine is based on the need for finality in legal proceedings and aims to protect parties from the burden of multiple lawsuits over the same matter. The principle of res judicata is codified in Section 7 of the Civil Procedure Act, which states 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, and has been heard and finally decided by such Court. The key elements of res judicata include:
i. The same parties or their privies must be involved in both the previous and current proceedings.
ii. The matter in question must have been directly and substantially in issue in the prior case.
iii. The previous case must have been decided by a court of competent jurisdiction.
iv. The judgment in the previous case must be final.
7. The Plaintiffs have already opted for the appeal route and both this Court and the Court of appeal dispensed itself on the issue of temporary injunction against sale of the Plaintiffs suit property by the 1st Respondent. This Court officially became functus officio on 31st July 2023 when it delivered its decision on the same issue as raised in the instant Motion application. This simply means that I will not be sitting on an appeal or review of Court of Appeal orders and the orders as issued by this Court on 31st July 2023.
8. In the above circumstances, I find the application dated 13th September 2024, is devoid of merit and dismissed with costs to the 1st Respondents.
9. Orders accordingly.
Dated and delivered at Kisumu this 7th day of February 2025.