[2019] KEHC 10203 (KLR)
The court found that the application as filed was barred by Section 6 of the Civil Procedure Act because the issues raised were directly and substantially in issue in previously instituted petitions before the High Court in Nairobi, in which the applicant was already a party and where conservatory orders protecting...
Source-derived case information.
- Citation
- [2019] KEHC 10203 (KLR)
- Parties
- Applicant: Diana Muthoni t/a DND Gaming Machines Limited; Respondent: Joshua Nkanatha, the County Commissioner Nakuru; Respondent: The Cabinet Secretary for Internal Security and Coordination of National Government; Respondent: The Attorney General
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Constitutional Application 103 of 2018
- Procedural Posture
- Miscellaneous Constitutional Application / Ruling on Preliminary Objection
- Outcome
- preliminary objection upheld; application dismissed
- Judges
- JK Mulwa
- Legal Topics
- Res Judicata, Conservatory Orders, Contempt of Court, Fundamental Rights, Interim Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Diana Muthoni t/a DND Gaming Machines Limited
Applicant
Joshua Nkanatha, the County Commissioner Nakuru
Respondent
The Cabinet Secretary for Internal Security and Coordination of National Government
Respondent
The Attorney General
Respondent
Procedural Posture
Miscellaneous Constitutional Application / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the application contravenes Section 6 of the Civil Procedure Act by raising issues directly and substantially in issue in previously instituted suits.
- 2 Whether the existence of conservatory orders in related petitions precludes the present application.
- 3 Whether the applicant's rights are sufficiently protected by existing orders.
Ratio Decidendi
The court found that the application as filed was barred by Section 6 of the Civil Procedure Act because the issues raised were directly and substantially in issue in previously instituted petitions before the High Court in Nairobi, in which the applicant was already a party and where conservatory orders protecting the subject matter (betting and gaming machines) had been issued and remained in force. The court noted that there was no evidence that the conservatory orders had been discharged or that the petitions had been determined. As such, the present application amounted to duplicative proceedings and was an abuse of process. The preliminary objection was upheld, and the applicant was...
Court Disposition
preliminary objection upheld; application dismissed
Orders
- The preliminary objection is upheld.
- The application is dismissed for contravening Section 6 of the Civil Procedure Act.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT NAKURU
MISCELLANEOUS CONSTITUTIONAL APPLICATION NO. 103 OF 2018
IN THE MATTER OF ARTICLES 2, 6, 10, 22 AND 58 AND THE
FOURTHSCHEDULETHEREOF 165(3)(B), (D) 2, 19, 20, (1),(2),
(3),(4) AND 22 OF THE CONSTITUTION OF KENYA (2010)
AND
IN THE MATTER OF ALLEGED CONTRAVENTION OF THE
PETITIONER'S FUNDAMENTAL RIGHTS AND FREEDOMS
PROTECED BY ARTICLES 27, 28, 29, 40, AND 50
AND
INTHE MATTER OF SECTIONS 3, 4, (1) (A) AND 30 OF THE
CONTEMPT OF COURT ACT (ACT NO. 46 OF 2016)
DIANA MUTHONI T/A
DND GAMING MACHINES LIMITED.....................................................APPLICANT
-VERSUS-
JOSHUA NKANATHA, THE COUNTY COMM. NAKURU..........1ST RESPONDENT
THE CABINET SECRETARY FOR INTERNAL SECURITY
AND COORDINATION OF NATIONAL GOVERNMENT...........2ND RESPONDENT
THE ATTORNEY GENERAL............................................................3RD RESPONDENT
RULING
1. The applicant Diana Muthoni t/a DND Gaming Machines Limited moved the court by an application dated the 16th April 2018 under Article 3, 6, 10, 22 and 258 of the Fourth Schedule of the Constitution 2010, and under the contempt of Court Act No. 46 of 2016. Seeking for an order directed to the Nakuru County Commissioner the 1st Respondent to render a proper inventory of confiscated 33 Betting and Gaming Machines, property of the applicant by his agents and/or officers, and order immediate release of the said machines pending hearing of the application, as they feared imminent destruction of the machines.
2. An order of interim injunction directed to the 1st, 2nd Respondents through their employees where granted by the court (Odero J) on the 16th April 2018.
3. The Respondents represented by the Hon. Attorney General filed a Replying Affidavit on the 27th April 2018 and on the 30th April 2018 filed a notice of preliminary objection to the application.
4. The Preliminary objection is the subject of this ruing. It is based on only one ground that the application as drafted and filed contravenes Section 6 of the Civil Procedure Act.
Section 6 states:
No court shall proceed with the trial of any suit or proceedings in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceedings between the same parties or between parties under whom they or any of them claim, or between parties under whom they or any of them litigating under the same title where such suit or proceeding is pending the same or any other than court having jurisdiction in any to grant the relief claimed.
5. I have considered both parties submissions as well as the pleadings.
In the applicants supporting affidavit sworn on the 16th April 2018 at paragraph 9, it is averred that there is a conservatory court injunction issued in Nairobi Constitutional Petition No.449 of 2016 (consolidated with Petition No. 428 of 2016) at the High Court of Kenya at Nairobi from conducting a crackdown on the petitioners premises by confiscating betting machines.
The applicant herein is listed as No. 18 in the Petition No. 482/2016, among 345 others. I have also seen the conservatory order dated 19th December 2016. It is in force.
6. It is therefore evident that this petition as filed contravenes the clear provisions of Section 6 of Civil Procedure Act.
The two mentioned petitions are pending for hearing and determination. The matters at issue in this petition are directly and substantially in issue in the petitions at the High court at Nairobi.
7. This court has not been told that the conservatory order issued by E.M. Muriithi J on the 19th December 2016 have been discharged or that the two petitions have been heard and determined.
8. For those reasons, I find merit in the preliminary objection. To that extent and by a further order of Odero J issued on the 30th April 2018 coupled with the conservatory order (Muriithi J), the applicant's betting machines are safe from destruction by the 1st and 2nd Respondents by their agents or employees pending hearing and determination of the application inter parties, and the petitions stated above.
9. The applicant shall bear costs of the application to the Respondents.
Dated, signed and delivered this 31st Day of January 2019.
J.N. MULWA
JUDGE