Kepue Ole Ngweta v Karino Ole Meshunko & Sarah Njoki Munge t/a Sanjomu Auctioneers [2014] KEHC 97 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CIVIL SUIT NO. 4 OF 2014

KEPUE ole NGWETA....................................................PLAINTIFF

-VERSUS-

KARINO ole MESHUNKO.....................................1ST DEFENDANT

SARAH NJOKI MUNGE t/a

SANJOMU AUCTIONEERS....................................2nd DEFENDANT

ISSUES FOR DETERMINATION

Whether the Preliminary Objection herein meets the legal requirements?

Whether the suit is an abuse of court process and offends the provisions of Section 34 of the Civil Procedure Act?

ANALYSIS

The first issue raised as a Preliminary Objection relates to the matter being  res judicata.  Before addressing this issue at length this court must satisfy itself that the Preliminary Objection meets the thresh-hold espoused in the renowned decision of Mukisa Biscuit Manufacturing Co. LtdV.West End Distributors Ltd.,(1969) EA 696. Where Law J made the following observations;

“…..a preliminary objection consists of a point of law which has been pleaded or which arise by clear implication out of the pleadings, and which if argued as a preliminary point may dispose of the suit…..”

I have noted that at paragraph 6 of the 1st Defendant’s Defence the issue of previous proceedings has been pleaded and that the subject matter was the same and the parties likewise and that there had been a determination in favour of the 1st Defendant.

It is further pleaded that at the earliest opportunity the court would be moved to have the suit struck out as it was bad in law incompetent and a serious abuse of court process.

This court has had the occasion

The provisions of Section 34 of the Civil Procedure Code read as follows;

“34. (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge of satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit.

(2) The court may, subject to any objection as to limitation or jurisdiction, treat the proceeding, and may, if necessary, order payment of any additional court fees.

(3)…………..

Explanation- For the purposes of this section, a plaintiff whose suit has been dismissed, and a defendant against whom a suit has been dismissed, are parties to the suit.”

I have perused the Plaint filed herein and note that the claim is for damages related to an eviction process carried out on the subject property known as 487 Kipise Adjudication by the defendants/respondents.

Annexed to the Replying Affidavits of the Applicants are copies of the Plaint and Order

FINDINGS AND DETERMINATION

For the reasons set out above the Preliminary Objection is overruled.

This court invokes the provisions of Section 17 of the Civil Procedure Act and directs that the suit be transferred to a subordinate court having competent jurisdiction within Narok or Naivasha for trial and disposal.

The Respondents shall have costs

Orders accordingly.

Dated, Signed and Delivered at Nakuru this 11th day of November 2014.

A. MSHILA

JUDGE