Kansiime v Himalaya Traders Ltd 7 Ors (COA-CV-CL-0209-2019)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The Court of Appeal sustained the respondents' objection and dismissed the application for an interim order of stay of execution. The court held that the matter was res judicata under section 7 of the Civil Procedure Act, since a single justice of the Court of Appeal had earlier determined the applicant's stay application on the merits, finding no irreparable damage and a non-meritorious appeal. The High Court had also found the matter res judicata. The applicant's proper remedy was a reference to the full bench under Rule 55(1)(b) and section 12(2) of the Judicature Act, not a fresh application. The repeated filing of applications was an abuse of court process, the applicant not having come with clean hands.

Outcome

Application for interim stay of execution dismissed with costs as res judicata and an abuse of process

Facts

A High Court decree declared the applicant a trespasser on land at Plots 20-30 Sadler Way Naguru, recognised the respondents as lawful registered proprietors, and ordered the applicant to give vacant possession and pay costs. The applicant filed two High Court applications for stay of execution (Nos 1900 and 1901 of 2017), which he withdrew with costs. He then filed Court of Appeal Civil Application No 279 of 2017 for stay, which a single justice (Bossa JA) dismissed with costs on 13 December 2017, finding the application incompetent, no irreparable damage, and that developments could be compensated by damages. The applicant then filed a further High Court application (No 1995 of 2017), dismissed with costs, where the judge held the Court of Appeal had decided the matter on the merits. The applicant then filed the present interim stay application in the Court of Appeal for the second time. The respondents objected that the matter was res judicata and an abuse of process.

Issues

1. Whether the application for an interim order of stay of execution was barred by res judicata, the same matter having been determined on the merits by a single justice of the Court of Appeal.
2. Whether the proper remedy of the applicant lay in a reference to the full bench of the Court of Appeal rather than filing a fresh application.
3. Whether the application constituted an abuse of the process of the court.

Orders

• The objection of the respondents is sustained.
• The applicant's application is dismissed with costs.

Rules and key headnotes

Legislation cited (8)

• Civil Procedure Act Cap 71 s.7
• Judicature Act s.12(2)
• Judicature (Court of Appeal Rules) Directions Rule 2(2)
• Judicature (Court of Appeal Rules) Directions Rule 6(2)(b)
• Judicature (Court of Appeal Rules) Directions Rule 43(1) and (2)
• Judicature (Court of Appeal Rules) Directions Rule 44(1)
• Judicature (Court of Appeal Rules) Directions Rule 42
• Judicature (Court of Appeal Rules) Directions Rule 55(1)(b)

The original judgment as reported. Read the original PDF before relying on any passage.