[2024] KEHC 12669 (KLR)

Catholic University of Eastern Africa v Trade Bells Limited (Civil Miscellaneous Application E029 of 2024) [2024] KEHC 12669 (KLR) (Civ) (8 October 2024) (Ruling)

Neutral citation: [2024] KEHC 12669 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Miscellaneous Application E029 of 2024

AN Ongeri, J

October 8, 2024

Between

Catholic University of Eastern Africa

Applicant

and

Trade Bells Limited

Respondent

Ruling

1. The applicant filed the application dated 19/1/2024 brought under Article 165(6) of the Constitution of Kenya 2010, Sections IA, 1B and 34, Section 18(1) (b(ii)) of the Civil Procedure Act, Order 11 Rule 3 and Order 51 Rule I of the Civil Procedure Rules 2010 and all enabling provisions of the law seeking the following orders;i.THAT this application be certified urgent and prayer no. 3 be granted ex parte at the first instance.ii.THAT the Honourable Court be pleased to withdraw and transfer the matter from the Small Claims Court to the Chief Magistrate's Court for the expeditious disposal of the same.iii.THAT pending inter partes hearing and determination of this Application, this Honourableiv.Court be pleased to arrest and/or stay the proceedings in SCCCOMM No. E5576 of 2023 Trade Bells Services Limited vs The Catholic University of Eastern Africa pending before the Small Claims Court at Milimani.v.THAT an order do issue that both suits be consolidated and heard before the Chiefvi.Magistrate's Court at Milimani.vii.THAT costs of this Application be provided for.

2. The application is based on the following grounds;i.Common questions of law and fact arise in both suits. Further, the witnesses in both cases will be the same.ii.The cause of action in both suits emanate from the same set of facts and they arise between the same parties.iii.The rights and/or reliefs claimed in both suits are in respect of the same transactions.iv.It will be contrary to the intended purpose of the overriding objectives of the Court for the two cases to proceed simultaneously before two different courts.v.The transfer and consolidation of the aforementioned cases and or the same being heard by the same Court will ensure speedy and expeditious disposal of the suits.vi.There is no prejudice to be suffered by the Respondent herein should this application be allowed as prayed.vii.It is in the interest of justice that the matter in the Small Claims Court be transferred to the Chief Magistrate's Court for the timely and efficient disposal of the same.

3. The application is supported by the affidavit of Sister Immaculate Muthoni sworn on 19/1/2024 as follows;i.THAT I am the Legal Officer of the Applicant herein, and duly authorized and competent to swear this affidavit on its behalf.ii.THAT I am seized of the facts herein and I wish to state that the brief facts preceding this Application are as here below.iii.THAT in 2017, the Applicant and the Respondent entered into a lease agreement wherein the Respondent was allowed to lease and operate the University cafeteria in exchange for a monthly rent of Kenya Shillings Three Hundred and Fifty Thousand (Kshs.350,000/=)iv.THAT the Respondent failed on numerous occasions to honour its part of the agreement and rent arrears continued to pile up, following which the Applicant was forced to issue the Respondent with a notice giving it one month to vacate the premises.v.THAT the Respondent in turn made a demand alleging that the Applicant owed it certain amounts of money.vi.THAT the parties agreed, in principle, to do a reconciliation and once the same was done, it was established that the Respondent was owing the Applicant a sum of Kenya shillings Two Million One Hundred and Eighty-One Thousand Six Hundred and Fifty Eight and Fifty Four Cents (Kshs.2,181,658. 54/=) in rent, water and electricity arrears to which a demand was made.vii.THAT the Respondent has, to date, failed to heed the demand and instead chose to institute SCCCOMM No. E5576 of 2023 Tradebells Services Limited vs The Catholic University of Eastern Africa at the Small Claims Court in Milimani, seeking payment of Kenya Shillings Nine Hundred and Seventy Eight Thousand Four Hundred and Thirty Four (Kshs. 978,434/=) from the Plaintiff/Applicant.viii.THAT the Applicant responded to the Statement of Claim through its Response to Statement of Claim dated 4th September 2023 denying owing the Respondent any monies. The Applicant however could not counterclaim in the Small Claims Court.ix.THAT the Applicant filed a suit at the Chief Magistrate's Court (Commercial Suit No. E121 OF 2023) vide Plaint dated 19th December 2023 seeking general damages and special damages in the sum of Kenya Shillings Two Million One Hundred and Eighty-One Thousand Six Hundred and Fifty Eight and Fifty Four Cents (Kshs.2,181 ,658. 54/=).x.THAT the matter before the Small Claims Court has been set for Hearing on 22nd January 2024, and the matter before the Magistrate's Court will be mentioned on the same date.xi.THAT the questions of law and fact arising in SCCCOMM No. E5576 of 2023 are similar to those arising in Commercial Suit No. E121 OF 2023. xii.THAT the consolidation and/or hearing/ adjudication of these suits before the same Court will avoid inconsistencies when judging the matters, and absurdity and/or different decisions on the same set of facts, transactions and issues of law arising from the same set of similar facts.xiii.THAT the transfer and consolidation of the aforementioned cases and/or the same being heard by the same Court will ensure speedy and expeditious disposal of the suits.xiv.THAT it is in the interest of justice that this application should be allowed.

4. The respondents filed a replying affidavit sworn by a Director of the Respondent opposing the application as follows;i.THAT in 2016 the parties herein entered into a lease agreement where the Respondent was allowed to occupy and operate the Learning Resource Centre (LRC) at the premises of the Applicant and in turn offer catering services to the University community in and around the Respondent's location.ii.THAT in the course of the tenancy the Applicant failed to make regular payments to the Respondent for catering services offered to it making it impossible for the Respondent to pay rent for the premises.iii.THAT in order to resolve the situation the parties had several meetings where there was a proposal to have the outstanding amounts owed to the Respondent offset against outstanding rent owed to the Applicant.iv.THAT despite the said discussions the Applicant failed to meet its obligations but continued to procure services from the Respondent and soon fell into arrears. However due to the modalities of the working relationship between the Applicant and the Respondent, the relationship persisted to the extent of the Applicant extending the lease between the parties by three months to 30th September 2017 from 1st July 2017. v.THAT thereafter the Respondent was awarded a tender by the Applicant for a period of three (3) years from beginning of 1st October 2017,vi.THAT I am aware that while parties were still negotiating the terms of the said agreement the Applicant arbitrarily issued a notice to vacate to the Respondent despite having awarded it the tender under the guise that the Respondent was trespassing on the Applicant's property.vii.THAT at the point of issuance of the notice to vacate, the Applicant had arrears in terms of the catering services offered to it by the Respondent. As such the Respondent demanded the same from the Applicant when the latter stated that it wanted to reconcile its accounts.viii.THAT at no point in time did parties ever agree to do a reconciliation as alleged by the Applicant but rather the Applicant came up with trumped up figures in response to the demand rendered to it.ix.THAT following no satisfactory response from the Applicant, the Respondent filed suit before the small Claims Court in SCCOMM E5576 of 2023 Tradebells Services Limited vs The Catholic University of Nairobi in order to recover the debt owed to it by the Respondent.x.THAT the Applicant filed an application challenging the claim claiming it was time barred to which the Court directed that the same be determined at the same time as the main cause.xi.Thereafter the Applicant filed a response along with a counterclaim for Kshs.1,000,000 dated 4th September 2023 after which the Court set down the matter for hearing.xii.THAT I am aware that during the pendency of the proceedings before the Small Claims Court the Applicant has made several attempts to scuttle the said proceedings as particularized below:a.On 5th September 2023 when the matter was scheduled for hearing, the Applicant sought an adjournment on the basis that it was not aware the matter was coming up for hearing of the main suit yet the court had given conclusive directions on 14th August 2023 when both parties appeared for a mention. The Court despite the constraints of time and in the interest of justice allowed the Applicant an adjournment on a date when the matter was partly heard and the Claimant closed its case.b.On the 28th September 2023 when the matter was coming up for hearing of the Respondent's(Applicant herein) case following the adjournment on 5th September 2023, it was made known to the court that the Applicant had filed an application under certificate of urgency seeking recusal of the presiding magistrate.c.Further, the Applicant raised a Preliminary Objection stating that the court had no jurisdiction for the reason that sixty (60) days had since passed yet the cause of delay was the Applicant itself.d.In a ruling dated 13th December 2023 the Court determined both the Applicant's Notice of Motion seeking recusal as well as the Preliminary Objection and directed parties to take directions on hearing.e.On 15th December 2023 parties attended court for directions on hearing of the Applicant's case before the Small Claims Court when the court fixed the matter for hearing on 22nd January 2024. f.On or about 18th January 2024 the Applicant herein served the Respondent with pleadings in CMCC COMMSU NO. E121 of 2023 filed before the Chief magistrates' Court at around 1800hrs stating that the said suit was coming up for mention on 22nd January 2024. g.Thereafter on 21st January 2024 at 1628hrs the Applicant served the Respondent with a Notice of Motion Application dated 17th January 2024 seeking inter alia consolidation of CMCC COMMSU NO. E121 of 2023 with SCCOMM E5576 of 2023 Tradebells Services Limited vs The Catholic University of Nairobi as well as stay of proceedings in the matter before the Small Claims Court.h.The Applicant herein sought interim orders vide the Application which is the subject of this response in order to stay proceedings knowing fully well the matter before the Small Claims Court had been set for delivery of judgment on 23rd February 2024. xiii.THAT I am advised by the Advocate on Record which advice I verily believe to be true that the Application herein is plagued by the rule of sub judice contrary to Section 6 of the Civil Procedure Act for the reason that a similar application was earlier filed in CMCC COMMSU NO. E121 of 2023 which application is yet to be determined neither has the same been withdrawn by the Applicant.xiv.THAT I am further advised by the Advocate on Record which advice I verily believe to be true that the application filed by the Applicant herein is vexatious and an abuse of the court process seeking to frustrate the Respondent in its pursuit of justice by delaying the proceedings before the Small Claims Court.xv.THAT I am aware that the Applicant did in fact participate in the hearing before the Small Claims court to the point of conclusion and therefore the prayer for consolidation is an afterthought seeking to delay and derail proceedings that are at their conclusion,xvi.THAT I am informed by the Advocate on Record which information I verily believe to be true that since SCCOMM E5576 of 2023 Tradebells Services Limited vs The Catholic University of Nairobi is scheduled for delivery of judgment on 23rd February 2024 and by the time the Honourable Court renders its decision on the application herein the prayers sought will have been overtaken by events.xvii.THAT I am also advised by the Advocate on Record which advice I verily believe to be true that should the Applicant's application be granted the same would defeat the interest of justice and the speedy and expeditious disposal of suits as enshrined in the Constitution of Kenya.xviii.THAT I swear this Affidavit in opposition to the Applicant's Application.xix.THAT I pray that the instant Application be dismissed in its entirety with costs to the Respondent,

5. The parties filed written submissions as follows; the applicant submitted that it would serve the interest of justice to consolidate the matters herein as the parties are the same and the issued are the same arising out of the same transaction.

6. In support the applicant cited the Supreme Court in Law Society of Kenya vs Centre for Human Rights & Democracy & 72 Others [2014] eKLR opined that:“The essence of consolidation is to facilitate the efficient and expeditious disposal of disputes and to provide a framework for a fair and impartial dispensation of justice to the parties. Consolidation was never meant to confer any undue advantage upon the party that seeks if, nor was it intended to occasion any disadvantage towards the party that opposes it.”

7. the respondent alternatively submitted that the applicant did not come before this court with clean hands as it filed a similar case before the Chief Magistrate’s court in COMMSU No. E121 of 2023. The said application was filed two days from whence the application before this court was filed. The application herein is therefore plagued by the rule of subjudice as provided for in section 6 of the Civil Procedure Act.

8. The respondent further contended that the application herein is a measure seeking to delay the disposal of the matter proceeding before the Small Claims court for a matter that has just been filed before the Chief Magistrates Court. Consequently, the consolidation of both suits would serve to deny the Respondent its right to a determination in the matter before the Small Claims Court where the Applicant itself participated from start to finish.

9. The sole issue for determination is whether this case should be transferred to Chief Magistrates court for disposal.

10. I find that it is not in dispute that there is a suit pending in the Chief Magistrate’s court being Milimani CMCC No. E121 of 2023.

11. I find that there is no dispute that the suit filed at the Chief Magistrate's Court (Commercial Suit No. E121 OF 2023) vide Plaint dated 19th December 2023 is seeking general damages and special damages in the sum of Kenya Shillings Two Million One Hundred and Eighty-One Thousand Six Hundred and Fifty Eight and Fifty Four Cents (Kshs.2,181 ,658. 54/=).

12. The amount the applicant is seeking is beyond the pecuniary jurisdiction of the SCCCOMM.

13. There is no dispute that the said suit arises from the same set of facts, transactions and issues of law which are in SCCCOMM No. E5576 of 2023 Trade Bells Services Limited vs The Catholic University of Eastern Africa pending before the Small Claims Court at Milimani.

14. The applicant submitted the consolidation and/or hearing/ adjudication of these suits before the same Court will avoid inconsistencies when judging the matters, and absurdity and/or different decisions on the same set of facts, transactions and issues of law arising from the same set of similar facts.

15. It is in the interest of justice that both suits be consolidated and heard in the Chief Magistrate’s Court since the applicant’s claim is beyond the pecuniary jurisdiction of the Small Claims Court.

16. However, in view of the strict timelines under which the SCCCOMM operate, it has been brought to this court’s attention that SCCCOMM No. E5576 of 2023 which the applicant was seeking to transfer has already been concluded and a judgment has been delivered and the same is now at appeal stage.

17. I find that this application has been overtaken by events. However, the applicant is at liberty to pursue its claim in CMCC NO. E121 OF 2023.

18. Since SCCCOMM No. E5576 of 2023 Trade Bells Services Limited vs The Catholic University of Eastern Africa is now at appeal stage, the same cannot be consolidated with CMCC No. E121 of 2023.

19. Each party to bear its own costs of this application.

20. This file to be marked as closed.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 8TH DAY OF OCTOBER, 2024. A. N. ONGERIJUDGEIn the presence of:……………………………. for the Applicant……………………………. for the Respondent