Case ID:174915

Estate of Joshua Wambugu Minjire represented by Caleb Minjire Wambugu v Isaiah Kavulafu & another [2021] eKLR

Case Metadata

Case Number:

Land Case 19 of 2011

Parties:

Estate of Joshua Wambugu Minjire represented by Caleb Minjire Wambugu v Isaiah Kavulafu & Joseph Shiyenji

Date Delivered:

11 May 2021

Case Class:

Civil

Court:

Environment and Land Court at Kitale

Case Action:

Ruling

Judge(s):

Francis Mwangi Njoroge

Citation:

Estate of Joshua Wambugu Minjire represented by Caleb Minjire Wambugu v Isaiah Kavulafu & another [2021] eKLR

Court Division:

Environment and Land

County:

Trans Nzoia

Case Outcome:

Application dismissed

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 ENVIRONMENT AND LAND COURT AT KITALE

LAND CASE NO. 19 OF 2011

ESTATE OF JOSHUA WAMBUGU MINJIRE

Represented by

CALEB MINJIRE WAMBUGU.................................PLAINTIFF

VERSUS

ISAIAH KAVULAFU........................................1

ST

DEFENDANT

JOSEPH SHIYENJI........................................2

ND

DEFENDANT

RULING

1. The application before me is dated

19/4/2021

is for stay of execution of the judgement of this court delivered on the

19/7/2019

.

2. This court ordered that the application be served and that an affidavit of service be filed in the record. It also ordered that the application be disposed of by way of written submissions. The applicants were ordered to file written submissions within

7 days

of the date the service of the respondent’s response to the application was due. Both parties’ submissions were filed on

10/5/2021

. I have considered those submissions.

3. The applicant’s main ground for seeking a stay is that they have preferred an appeal before the Court of Appeal against the judgment of this court and that the record has been served upon the respondent in this application. It is said that the appeal is arguable and that the applicants are bound to suffer irreparable loss if this court does not order a stay. They aver that they would be left without any compensation for the consideration paid if eviction issues against them. They also aver that they are of advanced age and undergoing health challenges at the moment. The applicants relied on the case of

James Wangalwa & Anor Vs Agnes Naliaka Cheseto 2021 eKLR.

4. The respondent avers in response that the application is

res judicata

in that a previous application for stay of execution had been filed by the applicants which was dismissed on

27/11/2019

. It is stated that the ruling thereon was not appealed; neither was review sought against it, hence the instant application is an abuse of the process of the court as it seeks the same orders sought in the previous application and made in bad faith and without disclosure of material facts. The respondent relies on the case of

Bernard Mugo Ndegwa Vs James Nderitu Githae & 2 Others [2010] eKLR

and

George Kitiyo Kamary Vs Stephen Lowasikou Mwei [2019] eKLR

and

Monica Wambui Kangangi & Anor Vs John Maina Mugo [2021] eKLR.

5. The issues that arise therefore are as follows:

(a) Is the application res judicata?

(b) Are the applicants entitled to a stay of execution?

(c) Who should bear the costs of the application?

6. As to whether the application is

res judicata

this court finds that an application was filed on

3/9/2019

as stated by the respondent in which the applicants herein sought an order of stay of execution of the judgment delivered by this court on

18/7/2019

pending the hearing of

an intended

appeal. That application was dismissed on the

27/11/2019

on the grounds that the risk of substantial loss had not been demonstrated and that the security offered by the applicants would in any event not be adequate perchance the court gave the stay order in that application.

7.

Section 7

of the

Civil Procedure Act

provides as follows:

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

8. It is clear that where an issue between parties has been determined by a competent court of law then the same can not be raised again between the same parties for determination owing to the doctrine of

res judicata.

9. It is now trite that the doctrine of

res judicata

applies to applications just as it does to suits.

10. The fact that at the time the applicants filed the first application dated

30/8/2019

they had not actually filed the appeal at that time and that they have now filed the appeal is of little relevance or help to them in the instant application. As long as this court finds that the provisions of

section 7

of the

Civil Procedure Act

apply to the instant application it must be dismissed.

11. The test to be applied here is whether the issue of stay or execution arose and was decided on the merits by a court seized of jurisdiction and between the same parties in the application dated

30/8/2019

.

12. In the application dated

30/8/2019

the orders of stay sought were the same as those sought in the instant application. The parties are the same as those before me now. They have come to court in the same capacity as they had come during the last application.

13. This court is now being asked by the applicants to re-assess their situation and to come up with a decision as to whether they deserve a stay of execution in this matter. That, if done would be the second time that this court would be doing it and in this court’s view the application is

res judicata

. Determining it on its merits would be contrary to the provisions of

Section 7

of the

Civil Procedure Act.

14. Consequently I hereby dismiss the application dated

19/4/2021

for being

res judicata

. There shall be no orders as to costs.

Dated, signed and delivered at Kitale via electronic mail on this 11

th

day of May, 2021.

MWANGI NJOROGE

JUDGE, ELC, KITALE.