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Kavin Aggrey Wakoli & another v. Housing Finance Company Kenya Ltd & 2 others [

(2015) JELR 100202 (CA)

Court of Appeal  •  Civil Appeal 30 of 2011  •  25 Sep 2015  •  Kenya

Coram
Hannah Magondi Okwengu, Paul Kihara Kariuki, Festus Azangalala

Judgement

JUDGMENT OF THE COURT

This is an appeal against the decision of Sitati J, in High Court [Land and Environment] Case No. 585 of 2009 [HC (L&E) case] in which the learned Judge struck out the appellants’ suit against the respondents on a preliminary objection that the suit was res judicata; that it was an abuse of the process of the court and that the 1st appellant’s equity of redemption had been extinguished. The res judicata finding was made on the ground that the 1st appellant had previously instituted High Court Civil Case No. 468 of 2004 against the 1st respondent and the issues raised in HC(L and E) case No. 585 of 2009 had conclusively been determined in the former suit. The learned Judge was also of the view that given the decision, in the former suit, the appellants’ new suit was also an abuse of the process of the court as it infringed Section 7 of the Civil Procedure Act (Cap 21 Laws of Kenya). Finally, according to the learned Judge, as the 1st appellant’s property had be…

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