[2016] KEELC 676 (KLR)
The court found that the applicants had previously obtained inhibition orders in a related succession cause and failed to prosecute that application. By filing a fresh application seeking similar orders without disclosing the existence of the prior orders, the applicants engaged in conduct amounting to abuse of...
Source-derived case information.
- Citation
- [2016] KEELC 676 (KLR)
- Parties
- Applicant: Getrude Chao Waita; Applicant: Stephen Mbaki Waita; Respondent: Agnes Wamaitha Kibuchi; Respondent: Edith Wangari Kanyeki
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Land Case 84 of 2013
- Procedural Posture
- Land Case / Ruling on Interlocutory Application for Inhibition Order
- Outcome
- application struck out as abuse of court process
- Judges
- AA Omollo
- Legal Topics
- Inhibition Orders, Abuse of Process, Interlocutory Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Getrude Chao Waita
Applicant
Stephen Mbaki Waita
Applicant
Agnes Wamaitha Kibuchi
Respondent
Edith Wangari Kanyeki
Respondent
Procedural Posture
Land Case / Ruling on Interlocutory Application for Inhibition Order
Legal Issues
- 1 Whether the applicants are entitled to a fresh inhibition order over plot No 627/VI/MN pending determination of the suit.
- 2 Whether the filing of a second application for inhibition without disclosing prior orders constitutes abuse of court process.
Ratio Decidendi
The court found that the applicants had previously obtained inhibition orders in a related succession cause and failed to prosecute that application. By filing a fresh application seeking similar orders without disclosing the existence of the prior orders, the applicants engaged in conduct amounting to abuse of court process. The court held that such duplicative applications waste judicial time and impose unnecessary costs on the respondents. Consequently, the court declined to consider the merits of the current application and struck it out with costs to the respondents.
Court Disposition
application struck out as abuse of court process
Orders
- The application dated 29.7.2015 is struck out.
- Costs awarded to the respondents.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MOMBASA
LAND CASE NO. 84 OF 2013
GETRUDE CHAO WAITA
STEPHEN MBAKI WAITA
(As Administratrors of the Estate of Franics Waita
Mbaki (Decased)......................................PLAINTIFFS/APPLICANTS
VERSUS
AGNES WAMAITHA KIBUCHI
EDITH WANGARI KANYEKI............................................DEFENDANTS/RESPONDENTS
RULING
1. The applicants filed their application dated 29. 7.2015 brought under the provisions of section 28 (a) and 68 of the Land Registration Act. The applicant seeks for an order;
“An inhibition be issued to prevent and bar the Respondents from undertaking any dealings on plot No 627/VI/MN pending determination of the suit.”
2. The application is supported by the grounds on the face of it and the affidavit deposed to by Stephen Mbaki Waita. The application is opposed by the Respondents vide replying affidavit sworn by Agnes W. Kibuchi the 1st Respondent. In the replying affidavit at paragraph 9, the deponent stated that the applicant had obtained interim orders of inhibition in High Court Succession Cause No 76 of 2012 which they have failed to list for hearing.
3. I called for the file High Court Succession Cause No 76 of 2012. The record in that file shows the applicants herein filed an application dated 20. 9.2014 seeking inhibitory orders. After considering the application exparte, Odero J. granted orders of temporary inhibtion on 23. 9.2014 and the applicants extracted the orders on 24. 9.2014. That application has not been heard on merits.
4. Instead of listing the application for hearing they went to slumber. When they woke up they filed a fresh application (current application) under certificate of urgency before me. In the instant application, similar orders were sought without disclosing the existence of the orders they had obtained. This Court is astounded that the applicants having obtained inhibition orders would still make a fresh application to be heard exparte at the first instance.
5. This action by the applicants is a clear abuse of the Court process. The same cannot be tolerated as it is wasting the Court's time as well as making the respondents to incur costs in defending the same application twice. On this account, I will not consider the present application on its merits. The same is struck out with costs to the Respondents for being abuse of the Court process.
Ruling dated and delivered at Mombasa this 21st day of July 2016
A. OMOLLO
JUDGE