.
1. On 5th March, 2024 this court dismissed an application dated 15th January, 2024 seeking an order to set aside, vary and/or review the order issued by this court on 25th September, 2023 dismissing the application dated 18th July, 2023 for nonattendance.
2. Six months later, the applicants filed the application dated 12th September, 2024 seeking orders similar to those sought in the application dated 15th January, 2024. In the instant application, the applicants seek orders that the court sets aside, vary and/or review its order of 17th October, 2022 dismissing the application dated 10th September, 2021 for nonattendance; that upon granting the aforesaid order, the application dated 10th September, 2021 be reinstated for hearing and determination.
3. The application is premised on the grounds on its face and supported by the affidavit of Richard Kibiwott sworn on 12th September, 2024. He deposes that the applicants filed an application dated 10th September, 2021 seeking leave to institute judicial review proceedings; that the previous counsel failed to attend court leading to its dismissal; that failure by the applicants to attend court was not deliberate but was caused by their former counsel who failed to communicate the true position of the matter on numerous occasions; that it was for this reason that they changed their representation from the firm of Kesse & Kesse Advocates to Awuor Otieno DM & Associates so as to prosecute the matter to its finality. It is their case that they risk suffering loss and damage as the matter involves land.
4. The application is opposed vide the replying affidavit of Joseph Kiprop Kiptoo, the interested party herein, sworn on 25th September, 2024. He deposes that the application is not properly before the court as counsel for the applicants ought to have sought leave to come on record; that the incoming counsel should have perused the court record and noted that similar applications had been dismissed on 17th October, 2022, 25th September, 2023 and 5th March, 2024; that this application is res judicata and a clear abuse of the court process and the justice system; that the counsel and applicants’ actions need to be refrained from misuse of the justice system and a freezing order issued barring the applicants from filing any such further applications. It is their case that they stand to suffer prejudice every time an application is filed due to legal fees paid.
5. The application was canvassed by way of written submissions.
6. The applicants filed their submissions on 19th December, 2024. The interested party chose to rely on his replying affidavit and did not file submissions. The respondents opted not to participate in the application.
7. In their submissions dated 17th December, 2024 the applicants gave a background of the events leading to filing of the instant application. They submitted that their current counsel is properly on record as no judgment has been delivered in this matter to necessitate granting of leave. They relied on the cases of Kamlesh Mansukhlal Damji Pattni v Nasir Ibrahim Ali & 2 others (2005) eKLR and Iway Africa Limited v Infonet Africa Limited & another (2019) eKLR and submitted that their application is meritorious; that they have all along been keen on prosecuting the matter but were let down by their previous counsel who misinformed them about the position of the matter; that a mistake of counsel should not be visited upon the client; that their decision to change representation is a clear indication that they are desirous of having this matter concluded. They further submitted that they stand to suffer prejudice as the subject matter involves land which they risk to lose if the application is not allowed, leaving them condemned unheard contrary to the rules of natural justice unlike the respondents and interested party who can be compensated of any loss if the application is allowed. They made reference to the case of Patriotic Guards Ltd v James Kipchirchir Sambu (2018) KECA 799 (KLR) to buttress their point.
8. I have carefully read and considered the application, the affidavits in support and opposition and the submissions. I find the sole issue for determination to be whether the application is Resjudicata.
9. The substantive law on Res Judicata is found in Section 7 of the Civil Procedure Act Cap 21 which provides:
“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”
The Black’s law Dictionary 10th Edition defines “res judicata” as
“An issue that has been definitely settled by judicial decision…the three essentials are (1) an earlier decision on the issue, (2) a final Judgment on the merits and (3) the involvement of same parties, or parties in privity with the original parties…”
10. ln paragraph 7 of the ruling delivered by this court on 5th March 2024, the court stated;
“In the circumstances of the case, the court has noted the conduct of the applicant to be a party who is not keen to prosecute this matter to its finality. This is the Applicant’s third attempt at reinstating the applications dismissed for non attendance (emphasis own). He has not offered a satisfactory explanation why he failed to attend court and why there was delay in filing this instant application. Exercise of the discretion of the court is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice…”
11. It is clear from the aforesaid ruling, that the instant application is Res Judicata. This court first dismissed the applicants’ application dated 10th September, 2021 on 17th October, 2023 for nonattendance. The applicants filed another application dated 18th July, 2023 seeking orders to reinstate the application dated 10th September, 2021. The aforesaid application was equally dismissed on 25th September 2023 for nonattendance. The applicants then filed the application dated 15th January 2024 seeking to set aside, vary and/or review the orders issued on 25th September, 2023. The court dismissed the application on 5th March 2024 which decision has not been appealed against. The same application having been finally determined thrice, cannot be resuscitated by another application.
12. A decision of the court must be respected as fundamental to any civilized and just judicial system. Judicial determinations must be final, binding and conclusive. There is injustice if a party is required to litigate afresh matters which have already been determined by the court. A decision of the court, unless set aside or quashed in a manner provided for by the law, must be accepted as incontrovertibly correct. These principles would be substantially undermined if the Court were to revisit them every time a party is dissatisfied with an Order and goes back to the same Court.
13. In a disappointing turn of events, precious judicial time has been wasted by the applicants’ conduct which has not only been prejudicial to the parties in this suit but also to other well deserving litigants who wanted to present their cases. The applicants have dragged this court in a series of similar applications filed at a whim that had already been determined to finality, a habit this court must condemn as it defeats the overriding objective of the Civil Procedure Act which is to facilitate the just, expeditious, proportionate and affordable resolution of civil disputes.
14. Consequently, I find the application dated 12th September 2024 devoid of merit and l dismiss it with costs to the interested party.
15. Orders accordingly.
Dated, signed and delivered, at Iten this 6th day of February 2025.
Ruling read virtually in the presence of:
Ms. Osewe Otieno holding brief for Ms. Otieno for the Applicants
N/A for the Respondents
Ms. Sielei for the Interested party
Christine Towett: Court Assistant
1. On 5th March, 2024 this court dismissed an application dated 15th January, 2024 seeking an order to set aside, vary and/or review the order issued by this court on 25th September, 2023 dismissing the application dated 18th July, 2023 for nonattendance.
2. Six months later, the applicants filed the application dated 12th September, 2024 seeking orders similar to those sought in the application dated 15th January, 2024. In the instant application, the applicants seek orders that the court sets aside, vary and/or review its order of 17th October, 2022 dismissing the application dated 10th September, 2021 for nonattendance; that upon granting the aforesaid order, the application dated 10th September, 2021 be reinstated for hearing and determination.
3. The application is premised on the grounds on its face and supported by the affidavit of Richard Kibiwott sworn on 12th September, 2024. He deposes that the applicants filed an application dated 10th September, 2021 seeking leave to institute judicial review proceedings; that the previous counsel failed to attend court leading to its dismissal; that failure by the applicants to attend court was not deliberate but was caused by their former counsel who failed to communicate the true position of the matter on numerous occasions; that it was for this reason that they changed their representation from the firm of Kesse & Kesse Advocates to Awuor Otieno DM & Associates so as to prosecute the matter to its finality. It is their case that they risk suffering loss and damage as the matter involves land.
4. The application is opposed vide the replying affidavit of Joseph Kiprop Kiptoo, the interested party herein, sworn on 25th September, 2024. He deposes that the application is not properly before the court as counsel for the applicants ought to have sought leave to come on record; that the incoming counsel should have perused the court record and noted that similar applications had been dismissed on 17th October, 2022, 25th September, 2023 and 5th March, 2024; that this application is res judicata and a clear abuse of the court process and the justice system; that the counsel and applicants’ actions need to be refrained from misuse of the justice system and a freezing order issued barring the applicants from filing any such further applications. It is their case that they stand to suffer prejudice every time an application is filed due to legal fees paid.
5. The application was canvassed by way of written submissions.
6. The applicants filed their submissions on 19th December, 2024. The interested party chose to rely on his replying affidavit and did not file submissions. The respondents opted not to participate in the application.
7. In their submissions dated 17th December, 2024 the applicants gave a background of the events leading to filing of the instant application. They submitted that their current counsel is properly on record as no judgment has been delivered in this matter to necessitate granting of leave. They relied on the cases of Kamlesh Mansukhlal Damji Pattni v Nasir Ibrahim Ali & 2 others (2005) eKLR and Iway Africa Limited v Infonet Africa Limited & another (2019) eKLR and submitted that their application is meritorious; that they have all along been keen on prosecuting the matter but were let down by their previous counsel who misinformed them about the position of the matter; that a mistake of counsel should not be visited upon the client; that their decision to change representation is a clear indication that they are desirous of having this matter concluded. They further submitted that they stand to suffer prejudice as the subject matter involves land which they risk to lose if the application is not allowed, leaving them condemned unheard contrary to the rules of natural justice unlike the respondents and interested party who can be compensated of any loss if the application is allowed. They made reference to the case of Patriotic Guards Ltd v James Kipchirchir Sambu (2018) KECA 799 (KLR) to buttress their point.
8. I have carefully read and considered the application, the affidavits in support and opposition and the submissions. I find the sole issue for determination to be whether the application is Resjudicata.
9. The substantive law on Res Judicata is found in Section 7 of the Civil Procedure Act Cap 21 which provides:
“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”
The Black’s law Dictionary 10th Edition defines “res judicata” as
“An issue that has been definitely settled by judicial decision…the three essentials are (1) an earlier decision on the issue, (2) a final Judgment on the merits and (3) the involvement of same parties, or parties in privity with the original parties…”
10. ln paragraph 7 of the ruling delivered by this court on 5th March 2024, the court stated;
“In the circumstances of the case, the court has noted the conduct of the applicant to be a party who is not keen to prosecute this matter to its finality. This is the Applicant’s third attempt at reinstating the applications dismissed for non attendance (emphasis own). He has not offered a satisfactory explanation why he failed to attend court and why there was delay in filing this instant application. Exercise of the discretion of the court is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice…”
11. It is clear from the aforesaid ruling, that the instant application is Res Judicata. This court first dismissed the applicants’ application dated 10th September, 2021 on 17th October, 2023 for nonattendance. The applicants filed another application dated 18th July, 2023 seeking orders to reinstate the application dated 10th September, 2021. The aforesaid application was equally dismissed on 25th September 2023 for nonattendance. The applicants then filed the application dated 15th January 2024 seeking to set aside, vary and/or review the orders issued on 25th September, 2023. The court dismissed the application on 5th March 2024 which decision has not been appealed against. The same application having been finally determined thrice, cannot be resuscitated by another application.
12. A decision of the court must be respected as fundamental to any civilized and just judicial system. Judicial determinations must be final, binding and conclusive. There is injustice if a party is required to litigate afresh matters which have already been determined by the court. A decision of the court, unless set aside or quashed in a manner provided for by the law, must be accepted as incontrovertibly correct. These principles would be substantially undermined if the Court were to revisit them every time a party is dissatisfied with an Order and goes back to the same Court.
13. In a disappointing turn of events, precious judicial time has been wasted by the applicants’ conduct which has not only been prejudicial to the parties in this suit but also to other well deserving litigants who wanted to present their cases. The applicants have dragged this court in a series of similar applications filed at a whim that had already been determined to finality, a habit this court must condemn as it defeats the overriding objective of the Civil Procedure Act which is to facilitate the just, expeditious, proportionate and affordable resolution of civil disputes.
14. Consequently, I find the application dated 12th September 2024 devoid of merit and l dismiss it with costs to the interested party.
15. Orders accordingly.
Dated, signed and delivered, at Iten this 6th day of February 2025.
Ruling read virtually in the presence of:
Ms. Osewe Otieno holding brief for Ms. Otieno for the Applicants
N/A for the Respondents
Ms. Sielei for the Interested party
Christine Towett: Court Assistant