[2019] KEHC 8748 (KLR)
The court found that the dispute between the parties had already been resolved through arbitration, and the resulting award was adopted as a judgment of the court. There was no evidence that the arbitration judgment had been set aside or appealed. Consequently, the court held that it lacked jurisdiction to entertain...
Source-derived case information.
- Citation
- [2019] KEHC 8748 (KLR)
- Parties
- Plaintiff: Kiai Mbaki; Plaintiff: Waweru Mugo; Plaintiff: Thiong’o Kiunga; Defendant: Gichuhi Macharia; Defendant: Mwangi Kimanga; Defendant: James Maina; Defendant: Duncan Mwaura Kamau; Defendant: Terrace Hotels Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 96 of 1999
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Dismissal Order
- Outcome
- application dismissed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Dismissal for Want of Prosecution, Setting Aside Orders, Arbitration Award Adoption, Jurisdiction of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kiai Mbaki
Plaintiff
Waweru Mugo
Plaintiff
Thiong’o Kiunga
Plaintiff
Gichuhi Macharia
Defendant
Mwangi Kimanga
Defendant
James Maina
Defendant
Duncan Mwaura Kamau
Defendant
Terrace Hotels Limited
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Dismissal Order
Legal Issues
- 1 Whether the court has jurisdiction to entertain the application after adoption of the arbitration award.
- 2 Whether the application to set aside the dismissal order is merited.
- 3 Whether the multiplicity of applications constitutes an abuse of court process.
Ratio Decidendi
The court found that the dispute between the parties had already been resolved through arbitration, and the resulting award was adopted as a judgment of the court. There was no evidence that the arbitration judgment had been set aside or appealed. Consequently, the court held that it lacked jurisdiction to entertain further applications relating to the same dispute. The repeated applications by the plaintiffs were deemed an abuse of the court process. The application dated 30th October, 2018 to set aside the dismissal order was therefore dismissed with costs to the respondents, as the matter had reached its legal conclusion and litigation must come to an end.
Court Disposition
application dismissed
Orders
- The application dated 30th October, 2018 is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL CASE NO. 96 OF 1999
KIAI MBAKI.............................................................1ST PLAINTIFF
WAWERU MUGO....................................................2ND PLAITNIFF
THIONG’O KIUNGA...............................................3RD PLAINTIFF
VERSUS
GICHUHI MACHARIA........................................1ST DEFENDANT
MWANGI KIMANGA..........................................2ND DEFENDANT
JAMES MAINA.....................................................3RD DEFENDANT
DUNCAN MWAURA KAMAU...........................4TH DEFENDANT
TERRACE HOTELS LIMITED..........................5TH DEFENDANT
RULING
On 23rd July, 2018 the court addressed an application dated 27th June, 2018 filed by the 1st defendant /applicant. That application sought among other orders that the suit against the 1st defendant abated on 7th February, 2017 and or that the plaintiffs’ suit be dismissed for want of prosecution.
The court having been persuaded that the application had been served going by the affidavit of service, and that no reply had been lodged to oppose the application, and further that the averments in the supporting affidavit were an uncontroverted, proceeded to dismiss the plaintiff’s suit with costs to the 1st defendant.
Thereafter, the 2nd and 3rd plaintiffs filed an application dated 15th October, 2018 to set aside the dismissal order aforesaid which application was listed for hearing on 30th October, 2018. When the application came up for hearing, the applicant was not present. Having confirmed that the date was taken by the applicant, that application was dismissed with costs.
On the same day that is 30th October, 2018 the 2nd and 3rd plaintiffs once again filed yet another application to set aside the dismissal of the application dated 15th October, 2018. That is the basis of this ruling. It was agreed that the ruling be based on the affidavit evidence on record.
I have taken some time to read the record herein. The multiplicity of applications herein may cloud the issues at the centre of this dispute. What I have noted however is that in the course of this dispute, parties submitted to arbitration proceedings and a judgment rendered accordingly.
That judgment of the arbitration process was adopted by the court and there is no evidence that it was ever set aside. That being the case, there appears to be no dispute that warrants the intervention of this court. If anything, the parties having been represented by counsel, should have been advised that only an appeal could keep the matter alive.
As it stands now, the applications on record may well be an abuse of the court process. I declare as I do, that I am not seized of any jurisdiction to continue entertaining the dispute before me. The end result is that this matter must now come to some sense of completion because, litigation must come to an end.
Going by the material before me, the order that commends itself is that the application dated 30th of October, 2018 is dismissed with costs to the respondents.
Dated, signed and delivered at Nairobi this 28th Day of March, 2019.
A. MBOGHOLI MSAGHA
JUDGE