This is a ruling following a notice of preliminary objection
filed by the Defendant where upon a point of preliminary objection that Civil
Case No. 91 of 2010 before this Court is barred by Res Judicata as
provided under section 9 of the CPC. The Defendant alleged that the matters and
issues in this case have been directly and substantially in issue in a former
suit between the same parties in the Commercial Division of this Court namely,
Commercial Case No. 21 of 2009. Moreover, the Plaintiff also raised some points
of objection with regard to the Defendant’s notice. It was pointed out that the
notice of preliminary objection was filed without leave of the Court as it was
filed after WSD contrary to Order VIII rule 13 of the CPC. Another point raised
by the Plaintiff was to the effect that the Notice of Preliminary Objection was
wrongly filed as the Defendant ought to have included it in his Written
Statement of defence (WSD) and not on a separate document as he did. It is with
regard to these issues that this court made this ruling.