[2020] KEHC 5783 (KLR)
The court found that the present suit and HCCC No. 645/2015 involve the same parties and subject matter, as conceded by the Plaintiffs. Section 6 of the Civil Procedure Act prohibits the court from proceeding with a suit where the matter in issue is also directly and substantially in issue in a previously instituted...
Source-derived case information.
- Citation
- [2020] KEHC 5783 (KLR)
- Parties
- Plaintiff: James Mungai Gacucu; Plaintiff: Remma Enterprises Limited; Defendant: Standard Chartered Bank (K) Limited; Interested Party: Mary Wangari Gacucu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 368 of 2018
- Procedural Posture
- Civil Suit / Ruling on Application to Strike Out or Stay Suit
- Outcome
- suit stayed
- Judges
- F Tuiyott
- Legal Topics
- Stay of Proceedings, Multiplicity of Suits, Res Judicata, Case Consolidation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Mungai Gacucu
Plaintiff
Remma Enterprises Limited
Plaintiff
Standard Chartered Bank (K) Limited
Defendant
Mary Wangari Gacucu
Interested Party
Procedural Posture
Civil Suit / Ruling on Application to Strike Out or Stay Suit
Legal Issues
- 1 Whether the present suit should be struck out due to the existence of a previously instituted suit involving the same parties and subject matter.
- 2 Whether the appropriate remedy is to stay the current proceedings or to strike them out.
Ratio Decidendi
The court found that the present suit and HCCC No. 645/2015 involve the same parties and subject matter, as conceded by the Plaintiffs. Section 6 of the Civil Procedure Act prohibits the court from proceeding with a suit where the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties. The court determined that the proper course of action is to stay the current proceedings pending the hearing and determination of the earlier suit, rather than striking out the suit. The Defendant may seek to strike out the present suit on grounds of res judicata after the earlier suit is determined.
Court Disposition
suit stayed
Orders
- The suit is stayed pending the hearing and determination of HCCC 645 OF 2015 James Mungai Gacucu & Another –vs- Standard Chartered Bank of Kenya.
- Costs to the Applicant.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL & TAX DIVISION
MILIMANI LAW COURTS
HCCC NO. 368 OF 2018
JAMES MUNGAI GACUCU.....................................1ST PLAINTIFF
REMMA ENTERPRISES LIMITED ......................2ND PLAINTIFF
VERSUS
STANDARD CHARTERED BANK (K) LIMITED.... DEFENDANT
AND
MARY WANGARI GACUCU .......................INTERESTED PARTY
RULING
1. These proceedings were began by way of a Plaint dated 15th November 2017 and filed on the same day. The propriety of the entire proceedings are challenged and the Defendant has through a Notice of Motion dated 5th February 2018 sought that the Plaint dated 15th November 2017 be struck out.
2. The fulcrum to the application is that there is pending before Court another suit being HCCC No. 645/2015 which revolves around the same subject matter as this suit and in which parties are identical.
3. This matter need not detain judicial time! By way of Notice of Motion dated 17th June 2018 and filed on 18th June 2019 the Plaintiff/Respondent herein sought that this suit be consolidated with HCCC 645 OF 2015 James Mungai Gacucu & Another –vs- Standard Chartered Bank of Kenya. A disposition in the affidavit of Anthony Mwanzia Mutunga sworn on 17th June 2018 in support of that application is very telling in regard to the application now before Court. He depones:-
[3] That both suits relates to same parties as herein and subject matter namely land parcels Number LR No. 209/11095/57 (I.R No. 79385), 209/11095/58 (I.R No. 79386) and 209/11095/59 (I.R No. 79387) Ranger’s Court, South C are similar to Nairobi HCC No. 645 of 2015 but instituted in different divisions of the High Court being the Commercial Division and Environment and Land Court Division.
4. That disposition is, in my view, a concession that these two suits relate to the subject matter and involves the same parties. For the fact that it is still pending then this suit should, perhaps, never have been filed. Yet is the answer to this state of affairs to strike out the current suit or to stay it. On this the Court elects to take the action prescribed by Section 6 of the Civil Procedure Act which reads:-
[S.6]No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.
Explanation. — The pendency of a suit in a foreign court shall not preclude a court from trying a suit in which the same matters or any of them are in issue in such suit in such foreign court.
5. The Court therefore stays this suit pending the hearing and determination of HCCC No. 645/2015. Once that suit is determined then the Defendant herein can decide whether or not to move this Court for striking out of the present suit on the basis of res judicata.
6. In answer to the Notice of Motion dated 5th February 2018 this suit is stayed pending the hearing and determination of HCCC 645 OF 2015 James Mungai Gacucu & Another –vs- Standard Chartered Bank of Kenya. Costs to the Applicant.
Dated, Signed and Delivered in Court at Nairobi this 21st Day of February 2020
F. TUIYOTT
JUDGE
PRESENT:
Mwinzi for Plaintiff
Ouma for Gathu for Defendant
Court Assistant: Nixon