JOHN OYAWO NEKO & 3 others v UNITY 45 HOUSING CO-OPERATIVE SOCIETY LTD [2004] KEHC 133 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)

Civil Case 1256 of 2002

JOHN OYAWO NEKOAND THREE OTHERS……..................…….PLAINTIFFS

-versus-

UNITY 45 HOUSING CO-OPERATIVESOCIETY LTD. ….…………DEFENDANT

R U L I N G

The Defendant/Applicant has filed a Chamber Summons dated the 12th January 2004 which was to be heard, inter partieson the 17th February 2004.

At such hearing, Mr. Nyakianganafor the Plaintiffs/Respondents sought directions as to whether or not such application was properly before the Court arguing that the orders it seeks have already been granted in a similar application on the 16th July 2003 by NyamuJand as such order are still subsisting, the subject application is res judicata.

Mr. Koge for the Defendant/Applicant in reply contended that the Orders of the 16th July last were pursuant to an Interlocutory Judgment entered  on the 5th July 2003 and were subsequently vacated by Visram  J on the 15th January 2004 following the Plaintiffs’ successful application setting aside the Interlocutory Judgment.

Having perused both Orders in conjunction with the record, I am satisfied that the Order of the 15th January 2004 vacated the earlier ones of the 16th July 2003 the later having in any event been granted ex parte pending, in my view, formal proof or hearing inter parties thereby allowing the parties to go to trial on the issues in this suit.  Pending trial the Defendant/Applicant is at liberty to prosecute its said application of the 12th January 2004.

Dated and delivered at Nairobi this 24th day of February 2004.

P. Kihara Kariuki

Ag. Judge