[2022] KEHC 3067 (KLR)

Kipngetich (Suing as personal representative of the estate of Ronoh Priscah Chepkemoi) v Matunda Fruits Bus Services Ltd & 3 others; Gitari (Interested Party) (Civil Case 107 of 2007) [2022] KEHC 3067 (KLR) (18 May 2022) (Ruling)

Neutral citation: [2022] KEHC 3067 (KLR)

Republic of Kenya

In the High Court at Eldoret

Civil Case 107 of 2007

RN Nyakundi, J

May 18, 2022

Between

Viscard Kipngetich

Plaintiff

Suing as personal representative of the estate of Ronoh Priscah Chepkemoi

and

Matunda Fruits Bus Services Ltd

1st Defendant

Nyanga Kironga

2nd Defendant

Max Transporters

3rd Defendant

Lawrence Muiruiki Thiongo

4th Defendant

and

Godfrey Murimi Gitari

Interested Party

Ruling

1. Before me for determination is the Notice of Motion dated 5th October, 2021 in which the Applicant seeks the following orders;1. The Honourable Court be pleased to review and/ set aside its orders herein made on 30/07/2019 and the Applicant be set at liberty to list down Eldoret CMCC NO. 559 OF 2007 for hearing.2. In the alternative to (a) above the Honourable Court do find that its orders of stay issued on 30/07/2019 do not bind the Applicant herein in so far as hearing and determination of Eldoret CMCC NO. 559 OF 2007is concerned.3. Costs be provided for.

2. The application is premised on the grounds on the face of it and is supported by the affidavit of Francis Omondi sworn on 5th October, 2021. The Applicant’s case is that, he filed a suit being Eldoret CMCC No. 559 OF 2017 Godfrey Murimi Gitari v Matunda Fruits Bus Services & 4 Others, seeking damages against the Defendants/Respondents herein for injuries he sustained in road traffic accident on 9th December, 2006. That the said Eldoret CMCC No. 559 OF 2017 Godfrey Murimi Gitari v Matunda Fruits Bus Services & 4 Others form a part of a series which were stayed pending the determination of a test suit being this instant suit. The Applicant averred that the test suit has since been heard and determined and that the 4th and 5th Respondents have since obtained an order of stay of execution of the judgment and decree herein pending the determination of the intended appeal.

3. The Applicant contends that he was not a party to the proceedings leading to the grant of orders of stay of execution. Further, he contends that to date, the Defendant have not filed an appeal against the judgment and herein.

4. According to the Applicant, Eldoret CMCC No. 559 OF 2017 Godfrey Murimi Gitari v Matunda Fruits Bus Services & 4 Others, was to be stayed pending the determination of this instant suit. The Applicant maintains that order of stay lapsed when judgment herein was rendered on 28th May, 2019. The Applicant case is that, therefore he is at liberty to set his suit being Eldoret CMCC No. 559 OF 2017 Godfrey Murimi Gitari v Matunda Fruits Bus Services & 4 Others down for hearing and determination.

5. The Applicant contends that the orders of stay of execution issued by the court on 30th July, 2019 were made in the mistaken belief that an appeal had been filed against this instant suit. Further the Applicant averred that Eldoret CMCC No. 559 OF 2017 Godfrey Murimi Gitari v Matunda Fruits Bus Services & 4 Others is over 13 years old and that he is desirous of having it set down for hearing and determination.

6. According to the Applicant the trial court has declined to set down his suit down for hearing citing the orders of stay issued herein on 30th July, 2019 based on the mistaken belief that the Applicant is bound by the orders of stay of execution issued herein and that an appeal has been issued against the instant suit.

7. The Applicant urged court to allow this application as prayed.

8. To oppose the Motion, the 4th & 5th Defendants/ Respondents filed Grounds of Opposition dated 24th January, 2022. In the Grounds of Opposition filed on 31st January, 2022 the 4th & 5th Respondents put forward the following grounds:1. The honourable court is bereft of jurisdiction to entertain this application before it.2. The application before court is improperly presented and therefore a non-starter.3. The application is not meritorious.4. The application is a non-starter.5. The prayers sought are fanciful and unwarranted.6. The application is not legally tenable but an abuse of court process.7. The application is an abuse of court process.

Determination 9. I have carefully considered the motion, the grounds thereof and the supporting affidavit, the replying affidavit, the rival submissions by the parties and the law. The only issue for determination is whether the Applicant has locus standi to maintain the instant suit.

10. The Respondents have submitted that the Plaintiff has no locus standi or capacity to institute this suit. That due to the lack of the said capacity, the suit is incompetent and should be struck out. In the case of Law Society of Kenya v Commissioner of Lands & Others, Nakuru High Court Civil Case No.464 of 2000, the Court held that;-“Locus Standi signifies a right to be heard, A person must have sufficiency of interest to sustain his standing to sue in Court of Law”. Further in the case of Alfred Njau and Others v City Council of Nairobi ( 1982) KAR 229, the Court also held that;-“the term Locus Standimeans a right to appear in Court and conversely to say that a person has no Locus Standi means that he has no right to appear or be heard in such and such proceedings”.

11. It is therefore evident that locus standi is the right to appear and be heard in Court or other proceedings and literally, it means ‘a place of standing’. Therefore, if a party is found to have no locus standi, then it means he/she cannot be heard even on whether or not he has a case worth listening to. It is further evident that if this Court was to find that the Applicant has no locus standi, then the Applicant cannot be heard and that point alone may dispose of the suit.

12. It is not is dispute that this instant suit was filed as test suit for various including Eldoret CMCC No. 559 OF 2017 Godfrey Murimi Gitari v Matunda Fruits Bus Services & 4 Others. Consequently, all other suits were stayed pending the hearing and determination of this suit.

13. The Applicant herein is the Plaintiff in Eldoret CMCC No. 559 OF 2017. This suit was heard and determined and judgment was rendered on 28/5/2019. Being dissatisfied with the said judgment the 4th & 5th Respondent did prefer an appeal to the Court of Appeal and also sought for orders of stay pending appeal which were issued.

14. Order 38 (1) and (2) of the Civil Procedure Rules is describes a test suit as follows:“Staying several suits against the same defendant [Order 38, rule 1. ]Where two or more persons have instituted suits against the same defendant and such persons under rule 1 of Order I could have been joined as co-plaintiffs in one suit, upon the application of any of the parties with notice to all affected parties, the court may, if satisfied that the issues to be tried in each suit are precisely similar, make an order directing that one of the suits be tried as a test case, and staying all steps in the other suits until the selected suit shall have been determined, or shall have failed to be a real trial of the issues.Staying similar suits upon application by defendant [Order 38, rule 2. ]Where a plaintiff has instituted two or more suits, and under rule 3 of Order 1 the several defendants could properly have been joined as co-defendants in one suit, the court, if satisfied upon the application of a defendant that the issues to be tried in the suit to which he is a party are precisely similar to the issues to be determined in another of such suits, may order that the suit to which such defendant is a party be stayed until such other suit shall have been determined or shall have failed to be a real trial of the issues.”

15. A test suit is purely a convenient method for trial of multiple suits against the same defendant (or by one plaintiff against several defendants) where the issues in the suits are the same.

16. The Applicant’s main contention is that he was not a party to the proceedings leading to the grant of orders of stay of execution herein and therefore not bound by the aforementioned orders. The 4th & 5th Respondents’ case on the hand was that, this being a test suit all consequential orders decrees and judgment bind all the parties to suit arising out of the same subject matter on the issue of liability including the applicant herein.

17. In my view, the case herein being a test suit the judgment on liability herein is binding on all the other related suits including the Applicant’s herein. The orders of stay of execution that were issued on 30th July, 2019 are also binding on all the other suits arising out of the same subject matter. The Applicant cannot therefore be heard to say that the outcome of the test suit does not affect his case as he was not a party to the said suit. The hearing and determination of Eldoret CMCC No. 559 OF 2017. cannot commence until the appeal is heard and determine. The outcome of the intended appeal will equally have a bearing on all the other related suits herein.

18. On the issue of locus standi is clear that the Applicant herein though affected by the orders of the test suit was not party to the test suit. He cannot therefore seek to set aside or review the orders issued therein without having been enjoined as a party to the said case. It is therefore my finding that the Applicant herein has no locus to institute these instant proceedings. It is on the issue of locus standi that I cannot pretend that I have not had serious challenges in considering the interests of the applicant. Interestingly, on this ground my legal lens is incapable of dealing with the issue at stake being pursued by the applicant.

19. Accordingly, the application dated 5th October, 2021 is hereby dismissed with costs to the Respondents.

DATED, SIGNED AND DELIVERED VIA EMAIL AT ELDORET THIS 18THDAY OF MAY, 2022. R. NYAKUNDIJUDGE