Introduction
1. The 1st applicant vide an application dated 5.1.2024 sought orders from the court to discharge the interim order of temporary injunction granted on the 23.1.2024 in favour of the respondent; that the suit be struck out with costs to the applicants for being res judicata as well as costs of the suit. The application was grounded on the supporting affidavit of one Egidia Mecha.
2. It is the 1st applicant’s case that the court granted interim orders of temporary injunction on the 23.1.2024 following the respondent’s application of the same date in which the respondent fraudulently concealed that he had sought similar injunctive orders against the bank before the Hon. Lady Justice Aburili in Kisumu High Court Commercial Case No. E005 of 2023, Okicon General Works Ltd v SBM Bank (Kenya) Limited which application was found to lack merit and subsequently dismissed with costs and was thus res judicata and an abuse of the process of the court.
3. The Application was opposed by the Plaintiff/Respondent through the Replying Affidavit sworn by JAMES KIPKORIR SAINA KHSIMBA on 13th February 2024 and filed in court on 14th February 2024.
4. The parties filed submissions to canvass the matter.
Applicant’s Submissions
5. It was submitted that the applicant’s main concern for applying to the court to set aside the already issued interim orders is the dishonesty and concealment of certain material facts away from this court for the respondent to prey on the innocence of this court at the applicants.
6. The applicant submitted that the concealed material facts touch on issue of res-judicata whereby the respondent in this matter upon its case being conclusively determined by Kisumu High Court 1 literally crossed over to the next door which is High Court 2 and filed a similar suit afresh without disclosing the fact that similar issues were judiciously determined in KISUMU HIGH COURT COMMERCIAL CASE NO. E005 OF 2023 by lady Justice R.E Aburili.
7. It was submitted that the respondent in the present case and who was litigating under the same tile in KISUMU HIGH COURT COMMERCIAL CASE NO. E005 OF 2023 (the former suit) has raised the issue of alleged non-service of the requisite statutory notice both under the Land Act and the Auctioneers Rules. The issues were conclusively canvassed and a decision rendered by Justice R.E Aburili to the effect that indeed all the statutory notices were issued.
8. The respondent submitted that in the former suit, the respondent did not raise the issue of valuation however a pre-sale valuation was conducted prior to the sale and a valuation report annexed to the Replying affidavit to the application for injunctive orders in the abovementioned former suit and further that the respondent did not sue the auctioneer in the former suit hence by introducing the auctioneer who acted as an agent of SBM Bank, and raising the issue of pre-sale valuation, the Plaintiff is purporting to argue that the suit is different hence not res judicata.
9. It was submitted that failure to put forth the issues of valuation and inclusion of the Auctioneer as a party in the former suit for deliberations and determination, the same cannot be argued to assist the present suit escape the doctrine of res judicata.
10. The applicant submitted that the former primary suit having been dismissed for non-attendance and an appeal on the ruling on application for injunctive orders having been abandoned and closed, this matter was conclusively dealt with on the merits of the case as presented by the parties therein.
11. The applicnt relied on the case of Mumira vs Attorney General (Constitutional Petition-E007 of 2020) [2022] KEHC 271 (KLR) (8 April 2022)(Ruling).
12. It was therefore submitted that the court should award costs to the Applicants of the present application seeking to set aside the interim orders once the Plaintiff’s suit is dismissed or struck out.
Respondent’s Submissions
13. It was submitted that dismissal of a case for lack of subject matter or because the service was improper or even for want of prosecution does not give rise to judgements on merit and therefor do not trigger the plea of res judicata as held by the Court of Appeal in the case of Tee Gee Electrics & Plastics Company Ltd v Kenya Industrial Estates Limited [2005] KLR 97.
14. The respondent further submitted that the applicant’s assertion that a similar suit was determined by a court of competent jurisdiction was misleading as the same was not heard but dismissed for want of prosecution.
15. It was submitted that the applicants’ allegations of dishonesty and concealment was not factual and had not been proven as required by sections 107 and 108 of the Evidence Act.
16. The respondent thus submitted that the instant application lacked merit and ought to be dismissed with costs.
Analysis and Determination
17. I have considered the pleadings filed herein as well as the submissions filed by both parties. The doctrine of res judicata is founded on public policy and is aimed at achieving two objectives namely; that there must be finality to litigation and the individual should not be harassed twice with the same account of litigation. This was stated in the Court of Appeal case of Nicholas Njeru Vs the Attorney General and 8 Others Civil Appeal No. 110 of 2011 [2013] eKLR.
18. In order for a defence of res judicata to suffice, a Court should look at all the four corners set out above namely; the matter directly and substantially in issue in the subsequent suit must be the same matter which was directly and substantially in issue in the former suits; the former suit must have been between the same parties or parties under whom they claim; the parties must have litigated under the same title; the Court which decided the former suit must have been competent and the former suit must have been heard and finally decided by the Court in the former suit.
19. The question this court is faced with is whether dismissal of a suit for want of prosecution is a permissible ground to sustain an objection founded on the doctrine of res judicata.
20. It is undeniable that all the parties herein save for the 2nd applicant were the same parties in Kisumu High Court Commercial Case No. E005 of 2024 and that all the issues raised in the respondent’s application therein save for the issue of the issue of pre-sale valuation had already been raised.
21. The Supreme Court in Kenya Commercial Bank Limited v Muiri Cofee Estate Limited & another [2016] eKLR stated the following regarding res judicata: -
“(52) Res judicata is a doctrine of substantive law, its essence being that once the legal rights of parties have been judicially determined, such edict stands as a conclusive statement as to those rights.”
22. Generally, a party will be estopped from raising issues that have been finally determined in previous litigation, even if the cause of action and relief are different. In assessing whether the matter raises the same cause of action, the question is whether the previous judgment involved the determination of questions that are necessary for the determination of the present case and substantially determine the outcome of the case.
23. Res Judicata serves as a key factor in restricting the jurisdiction of a court. This principle provides that once a court has reached a decision and issued a judgment, the parties involved should not be permitted to re-litigate the same issues. The doctrine emphasizes the importance of achieving finality in judicial decisions, advocating for a single decision per lawsuit. Res Judicata is applicable to both matters of fact and matters of law, ensuring that decisions made by the court based on facts remain conclusive and cannot be revisited by the same parties in future legal proceedings.
24. Res judicata is provided for in Section 7 of the Civil Procedure Act. It’s object is to bar multiplicity of suits and guarantee finality to litigation. It makes conclusive a final judgement between the same parties or their privies on the same issue by a court of competent jurisdiction in the subject matter of the suit.
25. The High Court of Kenya in Benjamin Koech v Baringo County Government & 2 others; Joseph C. Koech (Interested Party) [2019]eKLR after reviewing decided cases held that exceptional circumstances such as fraud, mistake or lack of jurisdiction may constitute special circumstances to remove the operation of the doctrine of res judicata. However, no special circumstances have been cited in this case. The issue here is whether res judicata applies after a case is dismissed for want of prosecution.
26. Whereas I agree with the reasoning in Cosmas Mrombo Moka v Co-operative Bank of Kenya Limited & another (2018) eKLR and Moses Mbatia v Joseph Wamburu Kihara (2021) eKLR that a suit dismissed or struck out for nonattendance or want of prosecution is not synonymous with a suit that has been heard and determined on merits, there is yet another important issue which was not addressed in the said cases, which is, whether it is open for a party to file a fresh suit based on the same facts and circumstances after the earlier suit is dismissed for want of prosecution.
27. My view is that it is not open for a party to file a fresh suit after the earlier suit is dismissed for want of prosecution. On this I am in agreement with Mativo J (as he was then) in the Mumira supra case that in such instances the proper cause of action for the respondent was to either apply to set aside the order dismissing the suit for want of prosecution or apply for review of the order or prefer an appeal against the dismissal.
28. It is not open for the respondent to institute a fresh suit replicating the same issues and camouflaging this with a sprinkle of an alleged new issue or party that could have been raised in the former suit. Such an approach is impermissible and if allowed, it would create endless litigation and open a window for parties to evade orders dismissing suits for want of prosecution or for non-attendance and then file fresh suits thus vexing Respondents twice with the same suit. In essence this is tantamount to forum shopping and a good example of abuse of court process
29. On the balance whereas this suit is not res judicata, the same epitomises a clear case of abuse of court process. This court will not condone such conduct by a litigant. I will thus allow the notice of motion dated 5th January 2024 and I proceed to make the following orders:
i) The interim orders of injunction made herein on 23rd January 2024 are hereby discharged.
ii) The suit herein is hereby struck out for being an abuse of court process.
iii) The plaintiff is condemned to pay costs of this suit to the 1st defendant.
iv) This file is marked as closed
Delivered, signed and dated at Kisumu this 27th day of August 202
1. The 1st applicant vide an application dated 5.1.2024 sought orders from the court to discharge the interim order of temporary injunction granted on the 23.1.2024 in favour of the respondent; that the suit be struck out with costs to the applicants for being res judicata as well as costs of the suit. The application was grounded on the supporting affidavit of one Egidia Mecha.
2. It is the 1st applicant’s case that the court granted interim orders of temporary injunction on the 23.1.2024 following the respondent’s application of the same date in which the respondent fraudulently concealed that he had sought similar injunctive orders against the bank before the Hon. Lady Justice Aburili in Kisumu High Court Commercial Case No. E005 of 2023, Okicon General Works Ltd v SBM Bank (Kenya) Limited which application was found to lack merit and subsequently dismissed with costs and was thus res judicata and an abuse of the process of the court.
3. The Application was opposed by the Plaintiff/Respondent through the Replying Affidavit sworn by JAMES KIPKORIR SAINA KHSIMBA on 13th February 2024 and filed in court on 14th February 2024.
4. The parties filed submissions to canvass the matter.
Applicant’s Submissions
5. It was submitted that the applicant’s main concern for applying to the court to set aside the already issued interim orders is the dishonesty and concealment of certain material facts away from this court for the respondent to prey on the innocence of this court at the applicants.
6. The applicant submitted that the concealed material facts touch on issue of res-judicata whereby the respondent in this matter upon its case being conclusively determined by Kisumu High Court 1 literally crossed over to the next door which is High Court 2 and filed a similar suit afresh without disclosing the fact that similar issues were judiciously determined in KISUMU HIGH COURT COMMERCIAL CASE NO. E005 OF 2023 by lady Justice R.E Aburili.
7. It was submitted that the respondent in the present case and who was litigating under the same tile in KISUMU HIGH COURT COMMERCIAL CASE NO. E005 OF 2023 (the former suit) has raised the issue of alleged non-service of the requisite statutory notice both under the Land Act and the Auctioneers Rules. The issues were conclusively canvassed and a decision rendered by Justice R.E Aburili to the effect that indeed all the statutory notices were issued.
8. The respondent submitted that in the former suit, the respondent did not raise the issue of valuation however a pre-sale valuation was conducted prior to the sale and a valuation report annexed to the Replying affidavit to the application for injunctive orders in the abovementioned former suit and further that the respondent did not sue the auctioneer in the former suit hence by introducing the auctioneer who acted as an agent of SBM Bank, and raising the issue of pre-sale valuation, the Plaintiff is purporting to argue that the suit is different hence not res judicata.
9. It was submitted that failure to put forth the issues of valuation and inclusion of the Auctioneer as a party in the former suit for deliberations and determination, the same cannot be argued to assist the present suit escape the doctrine of res judicata.
10. The applicant submitted that the former primary suit having been dismissed for non-attendance and an appeal on the ruling on application for injunctive orders having been abandoned and closed, this matter was conclusively dealt with on the merits of the case as presented by the parties therein.
11. The applicnt relied on the case of Mumira vs Attorney General (Constitutional Petition-E007 of 2020) [2022] KEHC 271 (KLR) (8 April 2022)(Ruling).
12. It was therefore submitted that the court should award costs to the Applicants of the present application seeking to set aside the interim orders once the Plaintiff’s suit is dismissed or struck out.
Respondent’s Submissions
13. It was submitted that dismissal of a case for lack of subject matter or because the service was improper or even for want of prosecution does not give rise to judgements on merit and therefor do not trigger the plea of res judicata as held by the Court of Appeal in the case of Tee Gee Electrics & Plastics Company Ltd v Kenya Industrial Estates Limited [2005] KLR 97.
14. The respondent further submitted that the applicant’s assertion that a similar suit was determined by a court of competent jurisdiction was misleading as the same was not heard but dismissed for want of prosecution.
15. It was submitted that the applicants’ allegations of dishonesty and concealment was not factual and had not been proven as required by sections 107 and 108 of the Evidence Act.
16. The respondent thus submitted that the instant application lacked merit and ought to be dismissed with costs.
Analysis and Determination
17. I have considered the pleadings filed herein as well as the submissions filed by both parties. The doctrine of res judicata is founded on public policy and is aimed at achieving two objectives namely; that there must be finality to litigation and the individual should not be harassed twice with the same account of litigation. This was stated in the Court of Appeal case of Nicholas Njeru Vs the Attorney General and 8 Others Civil Appeal No. 110 of 2011 [2013] eKLR.
18. In order for a defence of res judicata to suffice, a Court should look at all the four corners set out above namely; the matter directly and substantially in issue in the subsequent suit must be the same matter which was directly and substantially in issue in the former suits; the former suit must have been between the same parties or parties under whom they claim; the parties must have litigated under the same title; the Court which decided the former suit must have been competent and the former suit must have been heard and finally decided by the Court in the former suit.
19. The question this court is faced with is whether dismissal of a suit for want of prosecution is a permissible ground to sustain an objection founded on the doctrine of res judicata.
20. It is undeniable that all the parties herein save for the 2nd applicant were the same parties in Kisumu High Court Commercial Case No. E005 of 2024 and that all the issues raised in the respondent’s application therein save for the issue of the issue of pre-sale valuation had already been raised.
21. The Supreme Court in Kenya Commercial Bank Limited v Muiri Cofee Estate Limited & another [2016] eKLR stated the following regarding res judicata: -
“(52) Res judicata is a doctrine of substantive law, its essence being that once the legal rights of parties have been judicially determined, such edict stands as a conclusive statement as to those rights.”
22. Generally, a party will be estopped from raising issues that have been finally determined in previous litigation, even if the cause of action and relief are different. In assessing whether the matter raises the same cause of action, the question is whether the previous judgment involved the determination of questions that are necessary for the determination of the present case and substantially determine the outcome of the case.
23. Res Judicata serves as a key factor in restricting the jurisdiction of a court. This principle provides that once a court has reached a decision and issued a judgment, the parties involved should not be permitted to re-litigate the same issues. The doctrine emphasizes the importance of achieving finality in judicial decisions, advocating for a single decision per lawsuit. Res Judicata is applicable to both matters of fact and matters of law, ensuring that decisions made by the court based on facts remain conclusive and cannot be revisited by the same parties in future legal proceedings.
24. Res judicata is provided for in Section 7 of the Civil Procedure Act. It’s object is to bar multiplicity of suits and guarantee finality to litigation. It makes conclusive a final judgement between the same parties or their privies on the same issue by a court of competent jurisdiction in the subject matter of the suit.
25. The High Court of Kenya in Benjamin Koech v Baringo County Government & 2 others; Joseph C. Koech (Interested Party) [2019]eKLR after reviewing decided cases held that exceptional circumstances such as fraud, mistake or lack of jurisdiction may constitute special circumstances to remove the operation of the doctrine of res judicata. However, no special circumstances have been cited in this case. The issue here is whether res judicata applies after a case is dismissed for want of prosecution.
26. Whereas I agree with the reasoning in Cosmas Mrombo Moka v Co-operative Bank of Kenya Limited & another (2018) eKLR and Moses Mbatia v Joseph Wamburu Kihara (2021) eKLR that a suit dismissed or struck out for nonattendance or want of prosecution is not synonymous with a suit that has been heard and determined on merits, there is yet another important issue which was not addressed in the said cases, which is, whether it is open for a party to file a fresh suit based on the same facts and circumstances after the earlier suit is dismissed for want of prosecution.
27. My view is that it is not open for a party to file a fresh suit after the earlier suit is dismissed for want of prosecution. On this I am in agreement with Mativo J (as he was then) in the Mumira supra case that in such instances the proper cause of action for the respondent was to either apply to set aside the order dismissing the suit for want of prosecution or apply for review of the order or prefer an appeal against the dismissal.
28. It is not open for the respondent to institute a fresh suit replicating the same issues and camouflaging this with a sprinkle of an alleged new issue or party that could have been raised in the former suit. Such an approach is impermissible and if allowed, it would create endless litigation and open a window for parties to evade orders dismissing suits for want of prosecution or for non-attendance and then file fresh suits thus vexing Respondents twice with the same suit. In essence this is tantamount to forum shopping and a good example of abuse of court process
29. On the balance whereas this suit is not res judicata, the same epitomises a clear case of abuse of court process. This court will not condone such conduct by a litigant. I will thus allow the notice of motion dated 5th January 2024 and I proceed to make the following orders:
i) The interim orders of injunction made herein on 23rd January 2024 are hereby discharged.
ii) The suit herein is hereby struck out for being an abuse of court process.
iii) The plaintiff is condemned to pay costs of this suit to the 1st defendant.
iv) This file is marked as closed
Delivered, signed and dated at Kisumu this 27th day of August 202