[2018] KEHC 4185 (KLR)
The application before the High Court sought orders that were already the subject of a pending application in Meru CMCC NO. 147 of 2018, where the issue of jurisdiction was actively under consideration and a ruling was scheduled. The High Court held that intervening at this stage would amount to pre-empting the...
Source-derived case information.
- Citation
- [2018] KEHC 4185 (KLR)
- Parties
- Applicant: Elijah Waweru Mukaria; Respondent: Centenary Sacco Society Ltd; Respondent: George Gitonga Mungania
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 119 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Application
- Outcome
- application struck out as premature and an abuse of process
- Judges
- A Mabeya
- Legal Topics
- Jurisdiction, Parallel Proceedings, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elijah Waweru Mukaria
Applicant
Centenary Sacco Society Ltd
Respondent
George Gitonga Mungania
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Application
Legal Issues
- 1 Whether the High Court should grant orders for the release of motor vehicle KAS 038J pending the hearing of Meru CMCC NO. 147 of 2018.
- 2 Whether the High Court should determine or transfer Meru CMCC NO. 147 of 2018 to the Co-operative Tribunal before the lower court rules on its own jurisdiction.
- 3 Whether the application is an abuse of process in light of Section 6 of the Civil Procedure Act.
Ratio Decidendi
The application before the High Court sought orders that were already the subject of a pending application in Meru CMCC NO. 147 of 2018, where the issue of jurisdiction was actively under consideration and a ruling was scheduled. The High Court held that intervening at this stage would amount to pre-empting the lower court's decision and would contravene Section 6 of the Civil Procedure Act, which prohibits parallel proceedings on the same subject matter between the same parties. The court emphasized that the proper procedure was to allow the lower court to deliver its ruling on jurisdiction, after which any aggrieved party could seek recourse through the appropriate appellate or review...
Court Disposition
application struck out as premature and an abuse of process
Orders
- The application is struck out with costs to the respondents.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
MISC CIVIL APPLICATION NO. 119 OF 2018
ELIJAH WAWERU MUKARIA..............................APPLICANT
-V-
CENTENARY SACCO SOCIETY LTD......1ST RESPONDENT
GEORGE GITONGA MUNGANIA...........2ND RESPONDENT
R U L I N G
1. Before me is a Motion on Notice dated 27th August, 2018 brought pursuant to sections 3, 3A, 63 (e) of the Civil Procedure Act CAP 21 of the Laws of Kenya and Article 159 (2) (d) of the Constitution and all enabling provisions of the Law. In it, the applicant has sought an order for the release of motor vehicle registration number KAS 038J packed at Meru Police Station and a direction as to whether Meru CMCC NO. 147 of 2008be heard in the same court or it be transferred to the Co-operative Tribunal for hearing and determination.
2. The application is based on the grounds on the face of the Motion and an affidavit of Elijah Waweru Mukaria sworn on 27th August, 2018. He deposed, inter alia, that he was the plaintiff in the Meru CMCC NO. 147 of 2018 wherein he was seeking the release of motor vehicle registration number KAS 038J pending the hearing of the main case. That respondents filed an objection to the jurisdiction of that court and that this in turn had necessitated the filing of this application as the issue of jurisdiction was weighty.
3. The application was opposed via replying affidavits filed by the 1st and 2nd respondents on 11th September, 2018. It was deposed, that the application was a total abuse of the judicial process; it was not possible to discern whether the application was an anticipatory appeal or whether the court was being asked to confer jurisdiction on the Chief Magistrate’s Court to hear matters reserved for the Cooperative Tribunal. That there was a parallel suit being Meru CMCC NO. 147 of 2018, in which the subject matter and the parties were similar and the matters in issue the same. That the application therefore was in breach of Section 6 of the Civil Procedure Act.
4. I have carefully considered the application and the rival contentions by the parties. It is not in dispute that there is pending Meru CMCC NO. 147 of 2018. In that suit, there is pending an application dated 17th August 2018 wherein the applicant seeks orders that are similar to those he is seeking in the present application. It is also not disputed that the respondents have raised a preliminary objection challenging the jurisdiction of that court to hear the matter and a ruling is to be delivered on 10th October, 2018.
5. It would seem that what the applicant is asking the court to do is to pre-empt the decision of the lower court in the said Meru CMCC NO. 147 of 2018. That would not be proper. The proper procedure will be to let that court deliver itself on the issue before it, whereafter its decision can be referred to this court.
6. Counsel for the applicant submitted that the applicant came to this court to seek clarification on the matter of jurisdiction. That may be so, but this court cannot act in breach of a clear provision of the law, Section 6 of the Civil Procedure Act. Since a court is already seized of the matter, no other court can purport to take it over and rule on it.
7. There were issues that were raised regarding the efficacy of the respondent seeking to realize its security for a loan advanced to the applicant by repossessing the subject vehicle yet there are guarantees in force. This court rejects the invitation to address that issue as doing so would be delving into the merits of the dispute that is pending before the lower court.
8. In view of the foregoing, I hold that the application is premature, devoid of merit and is hereby struck out with costs to the respondents.
DATEDandDELIVEREDat Meru this 26th day of September, 2018.
A. MABEYA
JUDGE