Case ID:166624

Aridsun Contractors Limited &4 others v County Government of Kitui [2020] eKLR

Case Metadata

Case Number:

Civil Case 1 of 2019

Parties:

Aridsun Contractors Limited, Katungate Contractors Limited, Syano Roads & Bridges Company Limited, Konza Works Construction & Engineering Limited & Nelly Kavuu Mutisya t/a Kivui General Suppliers and Contractors v County Government of Kitui

Date Delivered:

09 Nov 2020

Case Class:

Civil

Court:

High Court at Kitui

Case Action:

Ruling

Judge(s):

Robert Kipkoech Limo

Citation:

Aridsun Contractors Limited &4 others v County Government of Kitui [2020] eKLR

Court Division:

Civil

County:

Kitui

Case Outcome:

Preliminary Objection disallowed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KITUI

HCC. NO.1 OF 2019

1. ARIDSUN CONTRACTORS LIMITED

2. KATUNGATE CONTRACTORS LIMITED

3. SYANO ROADS & BRIDGES COMPANY LIMITED

4. KONZA WORKS CONSTRUCTION & ENGINEERING LIMITED

5. NELLY KAVUU MUTISYA

T/A KIVUI GENERAL SUPPLIERS AND CONTRACTORS...PLAINTIFFS

VERSUS

COUNTY GOVERNMENT OF KITUI..............................................................................................DEFENDANT

R U L I N G

1. The

Plaintiffs

have sued the

Defendant

for breach of contract and have pleaded they were contracted to offer various services to the

Defendant

after winning the respective tenders to supply services which ranged from constructions of various roads within Kitui County, Construction of drifts to facilitate movements across

Twa River

and

Kilonzi River

. The

Plaintiff’s

claim that they delivered the services but were not paid and hence this suit for specific performance and special damages for delayed payments.

2. The

Defendant

in its pleadings alleged that the

Plaintiffs

failed to perform the works assigned to them to the required standard and within the stipulated time. It also pleaded that the

Plaintiffs’

suit was res-judicata because the matter had be adjudicated through

Kitui High Court Judicial Review No.23 of 2018.

3. The

Defendant

then took up the plea of

res-judicata

and filed a Notice of Preliminary Objection dated 2

nd

October, 2019 in that regard.

4. After filing the Notice of a Preliminary Objection the

Defendant

filed submissions on the Preliminary Objection on 16

th

July, 2020 and it appears that the

Plaintiffs

were served because on 15

th

September 2020 they also filed submissions in response and opposed the Preliminary Objection.

5. The matter was placed before this court on 16

th

September, 2020 when this court directed the Defendant to avail the decision which was the subject of its Preliminary Objection through a Supplementary Affidavit.

6. However on 14

th

October, 2020, the

Defendant

through counsel appeared and told this court that it had chose not to file any Supplementary Affidavit and was comfortable with the submissions filed.

7. The

Defendant

has submitted that its Preliminary Objection is based on the decision of Hon. Justice L.N.Mutende delivered in

Judicial Review No.23 of 2018

and averred that the decision settled the dispute over payment of money owed by the

Defendant

to the

Plaintiff

. It further claims that the decision was delivered on 31

st

January, 2019 and that the decision in their view was final and having adjudicated over the issues of non payment the same matter cannot be re-litigated again in view of clear provisions of

Section 7 of Civil

Procedure Act

and the doctrine of

Res Judicata.

8. The Plaintiffs have opposed the plea of

res judicata

and claimed that the issues before the court in

Judicial Review No.23 of 2018

were fundamentally different from the current suit. They contend that the doctrine of

res judicata

cannot apply in this suit.

9. The doctrine of

res-judicata

is embodied in

Section 7

of the

Civil Procedure

Act (Cap 21 Laws of Kenya).

The doctrine implies that once a matter between the same parties over same facts has been adjudicated by a competent court, the matter cannot be re-litigated again because of the need to have a finality in litigation and bring matters to a rest.

10. When a plea of

res judicata

is raised, a court looks carefully at the facts/issues and the decision claimed to have settled the issues in question in order to satisfy itself that indeed the issues are the same and have been fully adjudicated upon by a decision reached. For a court to come to that conclusion it has to go through the pleadings of the previous suit and the instant suit and look at whether the decision tendered finally settled the dispute. It is therefore incumbent upon the party raising the plea of

res judicata

to supply or tender evidence before court to enable court determine if the doctrine is applicable.

11. In this matter, the

Defendant

has made a general plea of res judicata and this court for good measure asked the counsel for the defendant to avail evidence that shows that the issues raised in this suit were infact the same raised by the same parties in the Judicial Review matter for which this court rendered itself. The

Defendant

however for reasons best known to itself chose to rely on the submissions which I find insufficient in so far on the fact/pleadings and the decision in

Judicial Review No.3 of 2018

are concern.

In the premises this court finds that in the interest of judicial time, and in the absence of pleadings and the decision in

Judicial Review No.23 of 2018

I will not delve into the Preliminary Objection dated 2

nd

October, 2018. The same in my view in its form is unsustainable and is disallowed.

Dated, Signed

and

Delivered

at

Kitui

this

9

th

day of

November, 2020.

R. K. LIMO

JUDGE