San Electricals Ltd v Sitima Enterprises Limited, Jayantilal Sandir, Jyobiten Jayantilal Chotal, Ashik Jayantilal Chotai & Nishit Jayantilal Chotai t/a San Electronics [2015] KEHC 210 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL   APPEAL NO.  257  OF 2010

(Appeal arising  from the ruling  and  order  of Honourable Mr S.N. Riechi, Chief Magistrate  ( as he then was) dated 28th April 2010 vide Milimani Chief Magistrate’s  court CM CC 5779 of 2008)

SAN ELECTRICALS  LTD……………………………………..……APPELLANT

VERSUS

SITIMA  ENTERPRISES LIMITED …………………………1ST RESPONDENT

JAYANTILAL SANDIR

JYOBITEN JAYANTILAL  CHOTAL

ASHIK JAYANTILAL CHOTAI

NISHIT JAYANTILAL CHOTAI T/A

SAN ELECTRONICS  ……………….......……………….….2ND RESPONDENT

JUDGMENT

This appeal arises  from the ruling  and  order  of Honourable Mr S.N. Riechi, Chief Magistrate  ( as he then was) dated 28th April 2010 vide Milimani Chief Magistrate’s  court CM CC 5779 of 2008.

The appellant Sitima Enterprises Ltd were the plaintiffs whereas the 2nd Respondents herein were the defendants in the lower court.  The plaintiff’s claim against the defendants, according to the plaint dated  10th September  2008  was that  between the year  2007 the defendants  requested  and the plaintiff delivered  goods in the ordinary course of business  to the defendants  which goods  were valued at kshs  332,295/20cts  but that  the defendant failed refused and  or ignored to pay the plaintiff the  debt due  despite  several demands  and intention to sue  and the defendant  had issued  to the plaintiff several cheques  that had on presentation to the bank been  dishonoured.

The plaintiff therefore  claimed for  kshs 322,295. 20 the value of goods, interest at prevailing  Commercial Bank lending rates; costs of the suit  and interest  therein at court rates.

In their written statement of defence dated 15th December 2008, the defendants denied the plaintiff’s claim.  They also contended that  the plaint as  drawn was  inchoate, vague  and devoid of  material particulars  and they  reserved the right  to raise preliminary objection seeking to strike out  for offending  the mandatory provisions of the Civil Procedure Act  and Rules.  They also denied ever issuing bouncing cheques as alleged.  In the alternative, they pleaded  that if at all any goods  were supplied  to them by the plaintiff, then they were fully paid  for, further that if  at all cheques  were drawn then they were for the  supply  of  goods  which the plaintiff  failed to supply within the  agreed  time; that  the said cheques  were  replaced   with cash payments  and so the plaintiff  was obliged to  return the cheques but declined to do so and  was fraudulently  attempting  to gain benefit  by alleging  dishonoring  of the same.   The defendant further contended in the alternative  and without prejudice  to each of the denials above that if the goods  were  ordered or supplied  then it  was an  implied term of conditions   of the agreement  that the goods  should be  reasonably fit for the purpose  for which the defendants required  them; they should  be reasonably  fit  for the  purpose  for which they were required   and that they should be  of merchantable  quality. In this case  it was contended  that the goods  were of  shoddy  quantity and not of  merchantable  quality and not fit for the  purpose for which the defendants  required them hence the defendants  were entitled  to reject  the said  goods therefore they were not liable  to the plaintiff in respect of the goods.

On 6th February 2009, vide an application  dated  4th February 2009, the  plaintiff’s counsel sought the  striking out of the  defendant’s  defence  dated 15th December  2008 and urged the court  to enter  summary judgment  in favour of  the plaintiff  against  the defendants  as prayed.  The plaintiff  had contended that  the defence  did not raise any  triable  issue  since they  had acknowledged  the debt  and made  attempts to liquidate  the same with  cheques  which had  perpetually  bounced; that the defence was a  sham, frivolous, vexatious, an abuse of the court  process and only meant  to delay the plaintiff’s realization of monies  due to it and that it  was  in the interest  of justice.

The trial court, Ms A. Ireri Resident Magistrate did strike out the defence and allowed the application, thereby entering judgment for the plaintiff as prayed, on 17th August, 2009.  The plaintiff then proceeded to draw decree and certificate for costs and applied for execution. On  26th October 2009, in  execution of decree herein, the  plaintiffs agents –auctioneers  served upon the appellants  herein with proclamation and warrants of attachment  and sale of the  appellant’s goods, purporting to execute decree   against the  2nd  respondent herein   San Electronics.  The appellant contended that it was in no way connected to San Electronics as the appellant   was a limited liability company.  It therefore  filed objection proceedings  to  execution, which application  dated 9th November 2009 was dismissed  with costs on   27th January 2010  by S.N. Riechi (Mr) Chief Magistrate ( as he then was) on the ground that the objector/applicant  had not responded  and was not present to prosecute  their application dated 17th December  2009.  Upon learning  of dismissal of the application dated 9th November 2009, the objector/applicant herein  lodged another  application similar  to the one 9th November  2009 and seeking  the same  orders, seeking stay  of execution of goods  and  property of the objector  who is  not the judgment debtor in the suit; that the decree holder/plaintiff  be condemned  to settle  auctioneers  charges  and the plaintiff/decree holder  be condemned  to pay objectors  costs  of the  application and objection proceedings.

The above latter application was opposed by the decree holder/plaintiff /respondent  who contended that the application  was res judicata  the application  dated 9th November  2009 as dismissed on 30th November  2009 and that therefore  the objector  was estopped  from filing  another application seeking for  the same  prayers  based on the   same grounds contrary to section 7 of the Civil Procedure  Act.  The plaintiff/decree holder/respondent relied on the case of Lucy Wairimu Mwaura V Aswirchand Hirji Shah & Others [2006] e KLR.  It was  also contended that the  advocate  on record Ms Ithondeka  & Company   were  not properly on record  since they  purported  to  file notice of change of advocates to take over  the conduct of the matter on  behalf of L.G. Menezes  advocate after judgment  without  first seeking  leave of  court hence, contravening Order  111 Rule  9A of the Civil Procedure  Rules.  The decree holder/plaintiff relied on the decision  of  AJ Limited  & Another  V Catering  Levy Trustees  to argue that  without proper authority the suit  was rendered  liable to be struck out. Further, those objection proceedings were filed on behalf of the objector a Limited liability Company without authority of the Board of Directors by a resolution.

On the grounds that the application dated 9th November, 2009 and the one  dated 17th December 2009 were the same and similar  in all material particulars, the trial court  was satisfied  that the application dated  9th November  2009 having been earlier dismissed, the objector could  not revive  it by filing  a similar application.  He found the latter application res judicata and dismissed it with costs on 26th April 2010.

It is that ruling and order of S.N. Riechi (Mr) Chief Magistrate (as he then was) that provoked this appeal.  The Memorandum of Appeal dated     28th June 2010 sets out four grounds of appeal namely:

1. The Honourable Learned  Magistrate  erred in law and misdirected  himself  in law and fact  in finding  that the application dated  17th December  2009  was res judicata   which was  not the case.

2. That the  Honourable Learned  Magistrate  erred in law  and in fact  in failing to  consider  issues of  fact of law  raised by the appellant  in its application dated 17th  December 2009.

3. That the Honourable Learned magistrate erred in law and in fact by failing to find that the appellant and the   2nd respondent/judgment debtor are separate and distinct entities in law.

The  appellant  prayed for  an order setting  aside the  Honourable  Magistrate’s ruling dated 28th April 2010; an order  granting  the appellant the orders  sought  in the lower court as  prayed in its application  dated  17th December  2009; and an order  that the respondent do  pay the  costs of this appeal and  of the lower  court proceedings.

This appeal was admitted to hearing on 4th May 2012 and directions given on the same day by Honourable Onyancha J.

Parties agreed on 16th March 2015 to canvas the appeal by way of written submissions.

All parties’ submissions were filed on 19th May 2015.

On the issue of whether  the application  dated 17th December  2009  was  Resjudicata, the appellants submitted  that under  Section 7 of the Civil procedure Act, the doctrine of Resjudicata can  only be relied on where the parties, issues, subject  matter  are the same  and the matter must have  been heard finally decided by the court.

In the appellant’s view, the earlier  application dated 9th November 2009 was dismissed  for non attendance  to  prosecute  and not on merit  hence  the issues  therein had not been  determined or resolved and so they  remained in dispute  that is  why it  filed  the application  dated 17th December 2009.

The appellant cited Order 12 of the Civil Procedure Rules on “hearing and consequences of non attendance” and Rule 6 (1) and (2) of the same Order to the effect that:

1. Subject to Subrule (2) and to any law of Limitation of Actions where a suit is dismissed under this order the plaintiff may bring a fresh suit.

2. When a suit has been dismissed under Rule 3 no fresh suit may be brought in respect of the same cause of action.

The appellant  relied on HCC 58 of 2009  & HCC 79/2011 Paul Kipsigei Rono V Johana  Kipkemoi Rono [2014] e KLR  where  Honourable L.N. Waithaka applied  the provisions of Order 12 Rule 6  of the Civil Procedure Rules and  held that a suit  that had  been dismissed for want of prosecution could be  resuscitated by  another  fresh suit.

On whether  the trial  magistrate considered  the issues of fact  and law raised by the appellant  in its application dated 17th December 2009, It was submitted  on behalf  of the appellant  that the  trial magistrate  failed to  consider the fact  that the earlier  application had been dismissed  on a procedural technicality  of failure to attend court  to prosecute the same contrary to the principles  espoused  in Article  159 2(d) of the Constitution .  Reliance was placed on General Plastics Ltd V Safepark Ltd IPT 36/2002 and Equity Bank Ltd V Capital Construction   Ltd [2012] e KLR.  The appellant  also relied  on the overriding  objectives  of the law  under Sections  1A and 1B of  Civil Procedure Act  as emphasized in HC Misc Application  699/2007- Lucy Bosire  V Kehancha Division Land Disputes  Tribunal & 2 Others [2013]  e KLR.  It was also submitted  that  in any event, failure  to attend  court to prosecute the application dated 9th November 2009 was an act of  negligence  of an advocate  which could  not be visited  upon his client  as was held  in the Lucy  Bosire V Kehancha Division Land Dispute Tribunal(supra).  It was submitted that objection  proceedings  were peculiar  since  the objector  is usually not a party to the proceedings  and therefore  stands at  an unfair  position  of its goods  risking  wrongful attachment and therefore dismissal of the  application without  hearing  the objector  deprived  it of its  goods hence  the application dated 17th February  2009 should be  reinstated  and determined  to conclusion.

On whether  the objector and judgment debtor  were distinct  entities  in law, it was  submitted  that the objector  being a  limited liability company was protected by the corporate  personality  as was  espoused  in the case of Salomon V. Salomon & Company Ltd[1887] AC 22. The appellant  also relied  on  the decision  in Channan Agricultural Contractors  (K) Ltd  V Rosemary Nanjala Oyula &  2 Others  CA 6/2010 [2013] e KLR where a similar  issue as  this case arose as to whether  Raju T/A Channan Agricultural Contractors Ltd were one and  the same as  Chairman  Agricultural Contractors (K) Ltd, the only difference  being the name ‘Raju.’ The court held that the elementary   rule that a limited liability company is a distinct legal person.  It is distinct and separate from its shareholders and directors.

In this case it was contended that the judgment debtor is a partnership whereas   the appellant is a limited liability company whose directors are distinct from the individuals in the partnership.  It was further submitted  that under Section 162(2) of the Companies Act  upon  incorporation a company became  a legal  entity  with the  capacity to own its  own  property which is a  fundamental  right under  Article 40  of the Constitution  hence the  appellant  should not  be arbitrarily  deprived  of that  right, having established, as required  under Order  22 Rule  51 of the Civil Procedure Rules  that it  had an equitable  or legal interest  or right  to  the property  that  was being  proclaimed  and attached  to satisfy decree unknown to the appellant  who was  not a party to the primary suit.

The appellant  prayed that  the appeal  be allowed  the lower court ruling  be set  aside and the application dated 17th December  2009  be reinstated  for hearing on merit.

The 1st respondent who was the decree holder  opposed this  appeal and submitted  through its  counsel Lubulellah and Company advocates that the application dated  17th December 2009 was on all fours  the same as  that one  dated 9th November  2009  which had  been dismissed  for non attendance  to prosecute  and that the appellant  should have  applied to  set aside  the order of  dismissal and sought for  reinstatement  of that application instead of  filing another  application.  Alternatively, that the appellant could have appealed against the order of dismissal made on  30th November 2009. Further, that the court was functus officio  after rendering its decision  on 30th November 2009 hence the subsequent  application dated 17th December 2009  was an  abuse of the court process  and was therefore properly struck out as being  contrary  to Section 7 of the Civil Procedure  Act.  Mr Lubulellah advocate relied  on Rono Ltd V Caltex  Oil(K) Ltd [2014] eKLR  where it was held that that the  purpose  of Section  7 of  Civil Procedure  Act is to bring  finality  to litigation and parties  should not  be allowed to  relitigate  on issues that  have already  been directly  and substantially in issue in a former suit (or application) as the case may be between the same parties.  Reliance  was also placed  on Northwest Water Ltd  V Binnie & Parties [1990] 3 ALL ER  542;Uhuru Highway  Development  Ltd V Central  Bank of Kenya & 2 Others CA 36/1996.

It was also contended that resjudicata  doctrine  applies to both  applications and suit whether  final or  interlocutory  as  was held by Ringera J in  Kanorero River Farm Ltd &  3 Others  V NBK (Ltd) HCC 699/2001. The 1st respondent  also maintained  that the impugned  application  was also incompetent  as it was filed by an  advocate  who was not  previously  on record  contrary to Order 111 Rule 9A  of the Civil Procedure  Rules  that require  that  a party  wishing  to change advocates  after judgment, the latter advocate  can only come on record  with leave of court  and or by an order of the court whether  the change  is consented  to by the previous  advocate or not. In this case it was argued that  the requirement  for leave of  court or  notice to  the advocate  on record was  not complied  with, which default  rendered  that application  fatally defective.  They relied on AJ Limited & Another V Catering Levy Trustees & Others (supra).

It was also submitted that  objection proceedings were  fatally  defective  as they were instituted  without  the authority of the purported  objector; for reasons that the purported  power of  Attorney  given to Pravin Kumar M. Kana by Vikram Shah and Alpana Sumit Shah  never  mentioned  the objector  company  or to act on behalf  of  the company.

Further, that by the time the  powers  of Attorney  were given  on 28th September  2007  the objector company had not been  incorporated  on   20th November  2007 therefore  not in existence.

Further, that the business was sold to individuals Sunil   Vikram Shah and Alpana Sumit Shah and not the objector.  The 1st respondent relied on AJ Ltd (supra) case and Kabundu Holdings Ltd V Ruth Wakonyo & Another.  Finally, that in any case the said powers of Attorney were granted to Prann Madha Vji Kana and not Prann Kumar M. Kana who had sworn an affidavit in support of the objection proceedings.

The  1st respondent  further  submitted that the 2nd  respondent  acted as  agent of the appellant  judgment debtor  hence  it cannot  be sued  when there  is a  disclosed  principal (see  Valentine Opiyo & Another V Masline Odhiambo T/A Ellyans  Enterprises [2014] e KLR.

The 1st respondent concluded that the appeal herein lacked merit   and therefore it ought to be struck out on account of:

1. Being an abuse of   the court process.

2. Being  contrary to the doctrine  of res judicata; and

3. Being incurably defective having been brought with want of power or any authority.

This being  the first appeal, the court is obliged to adhere to  the provisions of Section  78  of the Civil Procedure Act, that obliges a first appellate court to reassess, revaluate  and reconsider  the evidence and  record  as a whole and  come to its  own independent  conclusion . In this case, the court will only assess the affidavit evidence on record and apply the law as appropriate.

Evaluating  the record, the  appeal herein  is a  consequence  of the orders  of Honourable R.N. Riechi (Mr) Chief Magistrate  made on 28th April 2010 dismissing  the appellant’s application  dated  27th December  2009  on the grounds  that it was resjudicata  the application dated 9th November  2009 which had been dismissed  for non attendance  and prosecution.

In my view, that issue of  resjudicata  forms  the main ground of appeal for  reasons  that should  this court find that the trial  magistrate  was correct on his findings that the  latter application  was resjudicata, then  the court need  not go into the other grounds  of appeal raised  including  the failure of the trial magistrate  to consider other legal issues that  the application dated 17th December  2009 raised d  first things  first.

So, what was resjudicata about the application dated 17th December 2009?  To answer that question, I begin by reproducing the application dated 9th November 2009 and comparing it with the one dated 17th December 2009.

The appellant in the chamber summons dated 9th November 2009 brought under Order 21 Rule 56 and 57 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act sought orders that:

1. The objector’s company’s properties proclaimed on the 26th October 2009  in execution of the decree in this suit  carried out  by M/S Eshikhoni Agency  on instructions   of the respondent decree holder/plaintiff’s  is illegal, unlawful , and wrongful and offends  all tenets of the law.

2. That the said attachment and execution process be lifted and the properties proclaimed be released forthwith to the objector.

3. That the plaintiff/decree holder/ respondent be condemned    to pay objector’s costs of this application and objection proceedings.

THE GROUNDS on which this application is based are:

a) THAT the objector is a limited liability company and is the absolute, legal and registered owner of the proclaimed properties.

b) THAT the objector and the defendants in this suit are not the same and in any event, a limited company is a separate legal entity.

c) THAT the objector  company  and the defendants  are not  the same person/entity in law, as the defendants, out of whom, the 3rd defendant is deceased  and the 4th and 5th Defendant’s  have filed  bankruptcy  proceedings, are individuals trading as SAN ELECRONICS  whilst  the objector is a limited company  neither is  there  a community of interest.

d) THAT the objector is clearly not a defendant in this suit and hence is not the judgment debtor.

e) THAT the plaintiff/decree holder/respondent had a duty to ascertain the legal position before proceeding to attachment.

f) THAT the proclamation, attachment and execution process is blatantly illegal, unlawful and irregular.

The application was supported by an affidavit sworn by Pravin Kumar M. Kana holder of registered General Powers of Attorney from directors of the objector company, Sumit Vikram Shah and Alpara Sumit Shah.

The above application can be found at page 55 of the record of appeal filed by L.G. Menezes Advocates for objector.  At page  142 of the same record  of appeal is  a chamber  summons dated  17th December  2009 brought under  Order 21 Rules 56 and 57 of the Civil Procedure Rules and Section 3A  of the Civil Procedure Rules  and it prayed    for orders:

1. THAT this honourable court be pleased to stay the execution of goods and property of the objector/ applicant who is NOT the judgment debtor in the suit.

2. THAT the plaintiff/decree holder/respondent be condemned to settlement of the costs of the auctioneers charges.

3. THAT the plaintiff/decree holder/respondent be condemned to pay objector’s costs of this application and objection proceedings.

THE GROUNDS on which this application is based are:

a) THAT the objector  is a limited liability  company and is the absolete, legal and registered owner  of the proclaimed  properties  and was never  a party to this suit and  as such no execution  ought to  issue against .

b) THAT the objector and the defendants in this suit are not in any way connected and neither do the judgment debtors have   any claim against the property proclaimed.

c) THAT the judgment entered was against individual parties who are not in any way related to the objector/applicant herein.

d) THAT the objector  is clearly not a defendant  judgment-debtor in this suit  and hence  he is  not the judgment   debtor  and the  execution  as against  it is  illegal.

e) THAT the plaintiff /decree holder/respondent had a duty to ascertain the legal position before proceeding to attachment.

f) THAT the proclamation, attachment and execution   process is blatantly illegal, unlawful and irregular.

The application was supported by the affidavit sworn by Pravin Kumar M. Kana.

From  the above record  of the two sets of applications  as reproduced by me,  albeit the wordings  used in the  two applications are not exactly the same, I have  no doubt in my mind that the applications were brought  under the provisions of Order 21 Rule 56 and 57 of the Old Civil Procedure  Rules, which provisions relate to the institution of objection to  attachment  proceedings, by a person has a legal or  equitable  interest  or right over the  property attached  in  execution  of a decree wherein  the objector  was not a party.  I reiterate  that the 1st  application dated  9th November  2009  was dismissed  on 30th November  2009  for non attendance  to prosecute.

Consequent to that dismissal is when  the appellant/objector  herein filed the  application  dated 17th December 2009 seeking  the same  orders as those  that were  sought in the application dated 9th November 2009.  The trial magistrate dismissed the application dated 17th December 2009 on grounds of being Resjudicata and hence this appeal.  The question is, was the trial magistrate correct or did he err in dismissing the application dated 17th December 2009 for being Resjudicata?

The appellant  contends that it was an  error of law  and fact  on the part of  the trial magistrate to have  dismissed the latter application  since  under Order 12 Rule 6 (1) of the Civil Procedure  Rules  which also  applies to  applications, where  a suit(or  application) is dismissed  under that  order for non attendance, a  party can  bring a fresh suit and that is  what informed  the objector’s  latter  application.  They relied on several decisions to support their opposition while castigating the trial magistrate for acting contrary to the established law.  The respondent/ decree holder on the other  hand maintains  that the latter application offended  Section 7 of the Civil Procedure  Act  hence the  trial magistrate   was  correct in his findings  and decision.

According  to the appellant, Resjudicata  doctrine  only applies  where a matter  has been heard and determined  on  merit between the same  parties over  the same subject  matter and  by a court  of competent  jurisdiction.  The respondent  thinks  otherwise and maintains  that it  is an abuse of the court process  to bring the same  application as that which was   dismissed, instead  of applying  to set aside  the dismissal order  and or  appealing  against it.

Section 7 of the Civil Procedure Act which embodies the doctrine of Resjudicata enacts:

“ 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, or has been  heard and finally decided by such court.”

Explanation notes 1-6  sets out  under the said Section 7 explains  application of the Resjudicata  rule, as was  stated by Wingram  V-C  in the case  of Henderson  V Henderson [1843]67 ER 313 thus!

“ ………where  a given matter  becomes  the subject of litigation  in and  adjudication by,  court of competent  jurisdiction, the court  requires the parties to the litigation to bring forward  their whole case, and will not (except  under special circumstances) permit the same parties  to open the subject of litigation  in respect of matter which might  have been  brought forward, as  part of the subject  in contest, but which was not brought  forward  only because they have  from negligence, inadvertence, or  even accident, omitted part of  their case.  The pleas of Resjudicata  applies , except  in special cases, not only to points  upon which  the court was actually required by the parties to form an opinion  and pronounce  a judgment, but to every  point  which property  belonged to the subject  litigation and which  the parties, exercising  reasonable diligence, might have brought   forward at the time.”

I have anxiously considered  the above provisions and the provisions  of Order 12  Rule 6  of the Civil  Procedure Rules  which are  in parimateria to the old Rules  which provides:

“When only a defendant attends (Order 12 Rule 3)

1. If  on the day fixed for hearing, after the suit  has been called  on for hearing  outside  the court  only the defendant  attends  and  he admits  no part of the claim, the  suit shall be dismissed except for good cause  to be recorded  by the court.

2. If the  defendants admits any part of the claim, the court shall  give judgment against   the defendant upon such admission  and shall  dismiss the suit so far as  it relates to the remainder  except  for good cause  to be  recorded   by the court.

3. If the defendant has counterclaimed, he may prove his counterclaim do far as the burden of proof lies on him.

The question that arises is whether the plaintiff, or in this case  the applicant objector  is permitted  to file a new  case if the dismissal is  under Order  12 Rule 3  above.  The answer   is found in   Order 12 Rule 6 which provides:

“Effect of dismissal [Order 12 Rule 6”

1. Subject to Subrule (2) and to any Law of Limitation of Actions, where a suit is dismissed under this order the plaintiff may bring a fresh suit.

2. When a suit has been dismissed under Rule 3 no fresh suit may be brought in respect of the same cause of action.”

That provision of Order 12 Rule 6(2) of the Civil Procedure Rule is unambiguous.  It  is trite  that no fresh suit  can be brought  in respect  of the same  cause of action where  a suit  has been dismissed  under Rule 3 of the Order 12 reproduced  above.

I have no doubt that  the  application dated  17th December 2009  sought  the same orders  as those  sought in the application dated 9th November  2009 which  was dismissed   for non-attendance   to prosecute.  Need I therefore say no more than to state that none of the advocates referred the court to that very explicit provision of the law.  I must emphasize  that dismissal  of suit or  application for want of attendance under Order  12 is very different  from dismissal  of suit or  application for want of prosecution under Order  17, in  as much as  the effect  could  be the same.  In the case of Salwem Ahmed Hasson Zaidi V Faud Hussein Humeidan [1960] EA 92, at the hearing of the suit, the plaintiff did not appear but the defendant did. The plaintiff’s suit was dismissed for non attendance. A new suit was filed. The East African Court of Appeal held that the latter suit  was resjudicata  and held that a judgment  pronounced  against a party  under  the then Rule  178 of the Rules  of court ( similar  to  our Order 12 Rule 3 must be deemed  to be  a decision on the merits  and have the same  effect as a  dismissal upon evidence, and accordingly, the matters in issue  in the first  action must be deemed  to have been  heard and determined, the dismissal of the  earlier   action therefore  operated  as Resjudicata.

The provisions of Order 12 Rule 6(20 speak for themselves.  The remedy that the appellant herein had   was to apply to set aside   the order of dismissal as provided for under Order 12 Rule 7 which provides:

“Setting aside judgment or dismissal” [order 12 Rule 7]

“Where under this order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon which terms as may be just.”

The appellant did not pursue the above avenue after its application was dismissed for non attendance.  Instead, it pursued a remedy that was expressly unavailable that of filing a fresh application.  As I have stated, backed by express provisions of Order 12 Rule 6(3) no fresh suit or application can be brought after dismissal of the first application based on the same facts and grounds.  The new application was untenable.  It was Resjudicata and, in my view, an abuse of the court process.  See ELC 54/2014 Thomas  K. Sambu V Paul K. Chepkwonyi [2015] e KLR,See alsoMumbe Kisilu V Express Kenya Ltd  [2015] e KLR;and Justina  Angoro V Nelson Yabesh Bichanga & Another [2008] KLR.  In the latter case, Mwera J. (as he then was) found a subsequent application to a dismissed one to be resjudicata, albeit the earlier application had not been heard on merit.  The Learned Judge  held  and I concur that  bringing  subsequent  applications, even if the previous  ones  had not been heard  on merit, amounted  to an abuse  of the court  process.  I agree.

There  is no dispute  that Section 7  of the Civil procedure Act  equally  applies to applications as it does to suits as  was established  in the case  of Uhuru Highway Development Ltd V Central Bank of Kenya & 2 others [1996] e KLR  wherein it was held:

“Wider principles of resjudicata apply to applications within the suit.  If that  was not the intention, we can  imagine that the courts  could and  would be  inundated  by new applications  filed after  he original  one was  dismissed.  There must be an end to interlocutory application as much as there ought to be an end of litigation.”

In this case, Iam further fortified by Section 89 of the Civil Procedure Act which provides that the procedure in suits under this Act applies in all proceedings of a civil nature.  This in my view includes applications.

In view of the foregoing, it follows that a party who is dissatisfied with a ruling of a court in one application cannot go on filing subsequent applications on the very same issue as it is barred by the rules of resjudicata.

Albeit the appellant argues that resjudicata did not apply in this case because there was no final decision on the merits, I disagree with that submission and contention for two reasons.

1. That Order  12 Rule 6(2) expressly provides that when a suit has been dismissed  under Rule 3 that is, where suit  or application is dismissed  under that  rule for non attendance, no fresh suit  may be brought  in respect  of the  same cause  of actions, with the  only available  remedy being  found in the provisions of Order  12 Rule  7 which allow for an application  in the same  suit  or proceeding  for setting aside  or  varying  the judgment  or order, upon such terms  as may be just;

2. That where  suit/application has been  dismissed  for non attendance, under  Order 12 Rule  3, that decision is a determination and acts as  estoppel  that is  why Rule 6(2) thereof  bars the bringing  of a fresh suit or application on the same grounds.

Again, an aggrieved party can only apply under Rule 7 of Order 12 to reinstate the same.  It is on the foregoing that I concur with the findings and decision of the trial magistrate that the application dated 17th December 2009 was resjudicata.

That being  the case, it  would  have been  futile  for the trialmagistrate to belabor  to reach  findings  on the other grounds  or legal issues  in the suit for  reasons that  Resjudicata  once  taken is a preliminary point of law that  goes to the  jurisdiction of the court.  It is not a procedural technicality that can be cured by taking cover in the provisions of Sections 1A and 1B or 3A of the Civil Procedure Act or even under Article 159(2) (d) of the Constitution.

It  would equally be pointless for this court to venture  into the merits and demerits of the  other grounds  of appeal as  submitted, on having found that the issue of  Resjudicata  was  well taken and decided  upon by the trial court as  a preliminary point of law .

Accordingly, I find no merit in this appeal and proceed to dismiss it.  I uphold the finding  and decision of Honourable R.N Riechi (Mr) Chief Magistrate ( as he  then was) made  on 28th April 2010  dismissing  the objector/applicant/ appellant’s application dated  17th December 2009  with costs.

I also award costs of this appeal to the plaintiff/1st respondent.

Dated, signed and delivered in open court at Nairobi this 13th day of October 2015.

R.E. ABURILI

JUDGE