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Richard Omari Nyamatura v. Daniel Ombachi Mogeni

(2015) JELR 96750 (CA)

Court of Appeal  •  Civil Appeal 281 of 2011  •  21 May 2015  •  Kenya

David Kenani Maraga, Festus Azangalala, Sankale ole Kantai



This an appeal against the ruling and order of the High Court (Makhandia J., as he then was) made on 23rd September, 2011 wherein the learned Judge, on a preliminary objection, struck out the appellant's application for review. The preliminary objection, which was upheld, was to the effect that the High Court had become functus officio as the application for review was res judicata.

The dispute herein can be traced to a plaint filed on 8th November, 1996 by the appellant Richard Omari Nyamatura, against the respondent Daniel Ombachi Mogeni, in the High Court at Kisii. In that suit the appellant prayed for the following reliefs:

(a) Permanent injunction to restrain the defendant, his agents or servants from in any way interfering with the plaintiff's quiet enjoyment of his plot or parcel of land known as West Mugirango/Siamani/2257,

(b) General damages,

(c) costs of and incidental to this suit,

(d) Any other relief that the court could deem fit to grant."·

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