[2010] KEHC 1566 (KLR)
The court found that although two suits were filed on the same cause of action, the plaintiff had withdrawn instructions from the first set of advocates before the Nairobi suit was filed. There was no evidence that the plaintiff paid the first advocates or intended to pursue both suits. The plaintiff withdrew the...
Source-derived case information.
- Citation
- [2010] KEHC 1566 (KLR)
- Parties
- Plaintiff: Kajuna Idd Noor; Defendant: Rapid Kate Services Ltd; Defendant: Simion Isende; Defendant: Joseph Waite Macharia; Defendant: Akamba Public Road Services Ltd; Defendant: Danson Karanja Kimani
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1 of 2008
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Suit for Duplicity
- Outcome
- application dismissed
- Legal Topics
- Abuse of Process, Duplicity of Suits, Withdrawal of Suit, Verifying Affidavit, Costs Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kajuna Idd Noor
Plaintiff
Rapid Kate Services Ltd
Defendant
Simion Isende
Defendant
Joseph Waite Macharia
Defendant
Akamba Public Road Services Ltd
Defendant
Danson Karanja Kimani
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Suit for Duplicity
Legal Issues
- 1 Whether the filing of two suits on the same cause of action constitutes an abuse of the court process.
- 2 Whether the plaintiff's actions warranted striking out the Nakuru suit for duplicity.
- 3 Whether the withdrawal of the Nairobi suit cures the alleged abuse of process.
Ratio Decidendi
The court found that although two suits were filed on the same cause of action, the plaintiff had withdrawn instructions from the first set of advocates before the Nairobi suit was filed. There was no evidence that the plaintiff paid the first advocates or intended to pursue both suits. The plaintiff withdrew the Nairobi suit upon learning of its existence. The court was satisfied that the plaintiff did not abuse the court process and that the duplicity was not intentional. Consequently, the application to strike out the Nakuru suit was dismissed.
Court Disposition
application dismissed
Orders
- The application to strike out the suit is dismissed.
- Each party shall bear its own costs of this application.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Civil Case 1 of 2008
KAJUNA IDD NOOR................................................PLAINTIFF
VERSUS
RAPID KATE SERVICES LTD.........................1ST DEFENDANT
SIMION ISENDE...............................................2ND DEFENDANT
JOSEPH WAITE MACHARIA.........................3RD DEFENDANT
AKAMBA PUBLIC ROAD SERVICES LTD......4TH DEFENDANT
DANSON KARANJA KIMANI...............................5TH DEFENDANT
RULING
Arising from the injuries the plaintiff suffered in an accident on 8th January, 2005 along Molo-Nairobi road involving the defendants’ vehicles, on 20th December 2007 M/S Ombati Ongau & Co. Advocates filed Civil Suit No. 11013 of 2007 at the Milimani Nairobi Chief Magistrate’s court (the Nairobi case) claiming damages. On 7th January 2008 M/S Sila Munyao & Co. Advocates filed this suit (the Nakuru case) on the same cause of action.
By their Chamber Summons dated 5th January 2009 and brought under Order 6 Rules 13(1)(d) and 16 the 4th and 5th defendants applied to strike out this suit for duplicity. On 8th September 2009 the second and third defendants followed suit by filing a similar application under Order 7 Rules 1 and 2 and Order 6 Rule 13(1)(d) of the Civil Procedure Rules. This ruling is on the second and third defendants’ said application.
Basing himself in the averments in the affidavit in support of the application, their counsel Mr. Mahida submitted that the plaintiff knowing very well that he had filed theNairobisuit committed perjury by averring in the verifying affidavit in this suit that there is no any other suit pending on the same cause of action. He said filing two suits on the same cause of action is an abuse of the process of court and urged me to strike out this suit with costs to the second and third defendants.
In response Mr. Munyao for the plaintiff, also basing himself on the averments in his clients affidavits in opposition to this application, submitted that the plaintiff does not deny that the two suits were filed on his behalf on the same cause of action. He said the plaintiff initially instructed M/S Ombati Ongau & Co. Advocates to file a suit on his behalf and claim damages for the injuries he suffered in the said accident. As he was not able to raise the high fees that those advocates demanded he withdrew his instructions to them and instructed M/S Sila Munyao & co Advocates. The plaintiff was surprised to learn later that M/S Ombati Ongau & Co. Advocates filed theNairobi case despite the withdrawal of his instructions from them. The plaintiff having since withdrawn the Nairobi case Mr. Munyao urged me to find that this application has no basis and dismiss it with costs.
I have considered the matter. Filing of two or more suits by a party on the same cause of action was a common practice of the ambulance chasers in this country. Such litigation was no doubt an abuse of the court process. Happily that practice has considerably been reduced by the amendment to Order 7 of the Civil Procedure Rules.
It is not in dispute that two suits were filed on behalf of the plaintiff on the same cause of action. The correspondence annexed to the plaintiff’s replying affidavit confirm his claim that M/S Ombati Ongau & Co. Advocates demanded Kshs.100,000/- from him before they could file a suit on his behalf. The defendants have not provided proof that the plaintiff paid those advocates any money to file the suit. In the circumstances I am inclined to believe the plaintiff that he withdrew his instructions from those advocates. As those advocates stated in Ex.3 that they had, while awaiting for a deposit, drawn a draft plaint, I am prepared to believe Mr. Munyao’s submission that the plaintiff may have signed the verifying affidavit for theNairobi case before he withdrew his instructions.
For these reasons, and the fact that the plaintiff has withdrawn the Nairobi case, I find that he has not abused the court process and I accordingly dismiss this application. Each party shall bear its own costs of this application.
DATED and DELIVERED this 8th day of July, 2010.
D. K. MARAGA
JUDGE.