[2017] KEHC 4514 (KLR)
The court found that the applicant's request for injunctive and prohibitive orders was an abuse of the court process, as similar relief had already been sought and dismissed in a previous application. The principle of res judicata precludes the court from entertaining the same application again. Additionally, the...
Source-derived case information.
- Citation
- [2017] KEHC 4514 (KLR)
- Parties
- Applicant: Fredrick Remarque Chitechi; Respondent: Samantha Associates; Respondent: Kiprono Kittony; Respondent: Geoge M. Musindi; Respondent: Kenya National Chamber of Commerce & Industry
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Case 11 of 2014
- Procedural Posture
- Civil Case / Ruling on Notice of Motion Dated 9th March, 2017
- Outcome
- application dismissed
- Judges
- CM Njagi
- Legal Topics
- Abuse of Process, Interlocutory Injunctions, Judicial Review, Mandamus, Prohibition Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fredrick Remarque Chitechi
Applicant
Samantha Associates
Respondent
Kiprono Kittony
Respondent
Geoge M. Musindi
Respondent
Kenya National Chamber of Commerce & Industry
Respondent
Procedural Posture
Civil Case / Ruling on Notice of Motion Dated 9th March, 2017
Legal Issues
- 1 Whether the application seeking injunctive and prohibitive orders is res judicata or an abuse of court process.
- 2 Whether the applicant is entitled to orders of mandamus and prohibition without leave of court as required under Order 53 of the Civil Procedure Rules.
- 3 Whether interim orders of mandamus can be granted in the circumstances.
Ratio Decidendi
The court found that the applicant's request for injunctive and prohibitive orders was an abuse of the court process, as similar relief had already been sought and dismissed in a previous application. The principle of res judicata precludes the court from entertaining the same application again. Additionally, the applicant failed to obtain the requisite leave of court before seeking orders of mandamus, as mandated by Order 53 of the Civil Procedure Rules. The court further held that interim orders of mandamus are not available and such relief should be sought as part of the main suit. Consequently, the application was found to be misconceived and was dismissed.
Court Disposition
application dismissed
Orders
- The Notice of Motion dated 9th March, 2017 is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CIVIL CASE NO.11 OF 2014
FREDRICK REMARQUE CHITECHI....................PLAINTIFF/APPLICANT
VERSUS
SAMANTHA ASSOCIATES.............................................1ST DEFENDANT
KIPRONO KITTONY....................................................... 2ND DEFENDANT
GEOGE M. MUSINDI........................................................3RD DEFENDANT
KENYA NATIONAL CHAMBER OF
COMMERCE & INDUSTRY..............................................4TH DEFENDANT
RULING
1. The application for determination is the Notice of Motion dated 9th March, 2017 here the applicant seeks amongst other orders an order restraining the 3rd respondent from interfering with Kakamega County Chamber of Commerce and Industry A/C [particulars withheld] at Co-operative Bank Branch Kakamega and to compel 2nd, 3rd, and 4th respondents to appear in court in person. The applicant in the same application is seeking for judicial review orders of prohibition directed to the 3rd defendant prohibiting him from claiming leadership. Finally the applicant seeks an order of mandamus compelling the 2nd and 4th respondents to appear in court in person for interrogation.
2. The application is premised on the grounds on the face thereof and supported by the affidavit of the applicant. The application was served on the advocates for the defendant but they did not file a response.
3. I have perused the court file and I have noticed that the applicant had filed an application dated 1st July 2014 in which he was seeking the same injunctive and prohibitive orders against the 3rd respondent and others that he is still seeking in the application dated 9th March, 2017. The application dated 1st July 2014 was dismissed by Justice Sitati on 22nd June 2016. The current application seeking the same injunctive orders is therefore an abuse of the process of the court.
The applicant is also seeking for an order of mandamus to compel the 2nd, 3rd and 4th respondents to appear in court in person for interrogation and harmonization of membership and accounts. However the applicant has not obtained leave of the court to file an application for an order of mandamus as required by Rule 1 of order 53 of the Civil Procedure Rules. Further to this, it is my considered view that an order for mandamus cannot be granted on an interim basis. These prayers should form part of the main suit.
In view of the above, the application dated 9th March, 2017 is misconceived. The same is dismissed with no order as to costs.
Delivered, signed and dated at Kakamega this 13th day of July, 2017.
J. NJAGI
JUDGE
In the presence of:
None ……………………………………………….. for the plaintiff/applicant
N/A …………………………………………………….…. for the defendants
Paul .…………………………………………………………. Court assistant