[2004] KEHC 1066 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA CIVIL SUIT NO. 68 OF 2004

1. KENYA ASSEMBLIES OF GOD

2. REVERED PETER NJIRI …………………………………PLAINTIFFS

V E R S U S

KENYAPOWER & LIGHTING CO. LIMITED.……………………DEFENDANT

R U L I N G

By Chamber Summons dated the 11/5/2004 the defendant in this suit seeks to discharge orders made on 18. 3.2004 granting mandatory injunction against the defendant to divert its lines and cables away from LR. No. 1843 Mikindani and to employ safety measures within the way leave to create safety to the church, its occupants and or licensees.

A declaration that the notice dated 22/1/01 was illegal null and void and the defendants acts of constructing overhead cables are avoidable at law and an actual or purported demolition is illegal.

These prayers are made in pursuance of Order 39 rule 4 which empowers the court at the application of any aggrieved party to discharge vary or set aside injunction orders. And also under Section 3 and 3A Civil Procedure Act saving the inherent powers of court. The grounds written in the application are :-

Firstly that the 2 nd plaintiff filed a suit in subordinate court CMCC. No. 2212/2001 for orders restraining the defendant from demolishing or interfering with Plot no . 1843 which is subj ect matter of this suit.

Secondly that such orders were rejected by the lower court .

Thirdly that it is after that , that suit was withdrawn and this suit filed on 5/3/04.

Fourthly that the plaintiffs did not disclose these matters to this court.

Fifthly orders granted will inconvenience several persons served by 132 K.V. line that runs from Kipevu to Rabai power substation in Kilifi and the costs in diverting would be colossal .

Finally that hearing proceeded exparte giving no chance to defendant to bring these facts to court and it would only be just and fair to discharge such orders .

The application is opposed by the plaintiff who have filed grounds of opposition citing non compliance of Electric Power Act 1997 Section 45 (2) (3) and 46 1,2, and 3 and showing that the land in dispute came to private hands in 1999 and that the notices are illegal and inoperative under Electric Power Act 1997. Furthermore no notice of the extension of way leave has been issued by the Council.

The main objection to the orders issued is that the plaintiff failed to disclose to court that there were other proceedings in another court on similar matter between the parties and the nature of orders granted. Paragraph 11 of the plaint states:-

“11. That, the cables still subsist inspite of all previous action against the defendant in Mombasa cmcc. No. 2212/2001 and the appeal there from which suit has now been withdrawn.”

This gives the impression that there was order to remove the cables in the lower court which is not so. In the supporting affidavit in that application it is stated para.4

“instructed the firm of Gikandi & Co. to go to court and seek injunction orders in CMCC No. 2212 of 2001 which orders are subject to appeal No. 86 of 2001. ”

The plaintiff did not exhibit the lower court proceedings or indicate that injunctive orders were refused in the lower court on the grounds that the plaintiff admitted wayleave in favour of the defendant and that the structures constructed under the power lines were temporary. These are material facts which should have been clearly spelt out in this court instead the advocate appearing simply said

“I have now served my application. I have filed affidavit of service. Certificate has been granted. No appearance for t he other side. I ask for orders”.

It is the duty of Counsels to disclose material facts when the other side is not represented.

It was material here for advocate to disclose not only that a certain suit has been filed in another court but to disclose the nature of orders given if the same were material to the present issues.

As it is by the time the lower court suit was withdrawn a binding order had already been made after full deliberation in court. The injunction was refused and the proposed appeal is said to have been withdrawn. Therefore the matter has become res judicata between the parties and cannot be agitated in another court of competent jurisdiction. In the case of The Republic –vs- Duke of Kensington it was clearly stated that where a party is guilty of non disclosure of material facts the court is obliged to discharge any orders granted in those circumstances.

The practices of hoping from one court to another seeking favorable judgment is to be discouraged. In this case the respondents moved from lower court from where they could have raised an appeal to High Court in a deliberate manner without regard to he rule against duplicity of suits.

In the circumstances I allow the application and hereby discharge the order complained of. The applicant shall have costs of this application.

Dated this 19th day of November, 2004.

J. KHAMINWA

JUDGE