[2009] KEHC 1856 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE 226 OF 2009

MAHAN DHARIWAL (Chairman New Muthaiga Resident Association)

DILIP BAKRANIA (Secretary New Muthaiga Resident Association)

USHA SHAH (Treasurer New Muthaiga Resident Association)Suing

on behalf ofNEW MUTHAIGA RESIDENT ASSOCIATION….................PLAINTIFF

VERSUS

GEMINI PROPERTIES LTD………................…………….....……….1ST DEFENDANT

CITY COUNCIL OF NAIROBI……...............……….......……………2ND DEFENDANT

RULING NO.1

The plaintiff/applicant has moved to this court, by way of a plaint dated 14th day of May 2009 and filed on the same date. Simultaneously with the plaint, was filed an interim application by way of a chamber summons also dated and filed the same 14th day of May 2009. It is brought under section 63 of the CPA and order 39 rule 2 of the CPR, and all the inherent powers of this honourable court. The court, has been informed that the said application has been served and the first defendant has responded to the same by filing a replying affidavit deponed by one Madatali Chator on a date not known as the last page of the affidavit containing the Jurat is missing from the bound copy. But it is shown to have been filed on the 8th day of June 2008. The notice of appointment of the 1st respondents counsel is dated 22nd day of May 2009 and filed the same date of 22nd May 2009.

The second respondent has also moved to oppose the said application vide a replying affidavit deponed by one P.M. Kibinda on the 8th day of June 2009 and filed the same day.

When the parties appeared before this court, on the 10th day of June 2009, they were coming for the interparties hearing of the interim application, but the same did not proceed because, counsel for the 1st defendant raised certain issues subject of this ruling which forced the court to reserve the ruling for delivery on 15/6/09, after which depending on how the verdict goes, the interim application to proceed to hearing or the preliminary objection filed by the 1st defendant to proceed to hearing.

The 1st defendant’s counsel’s complaint is that the 3rd defendant gave T.V. interview to KBC aired both on the 7 and 9 o’clock news during which interview she was interviewed extensively as regards matters in dispute herein. She is alleged to have made adverse comments concerning the first defendants’ conduct of these proceedings. Content of the claims presented and their conclusions on the dispute and what in her view should be the conclusion that the court, seized of the matter should arrive at. Counsel further went on to state that it has also been alleged by the said 3rd plaintiff that there were orders of restraint against the 1st defendant which orders the 1st defendant was alleged to be disrespecting and yet there are no such orders in place herein. The counsels’ view is that such utterances go to not only prejudice the proceedings but border on acting in contempt of the very court from which the party complained of has come to seek justice. Counsel added that the content of the said television interview was available and could be availed to the court, electronically, in case the issue is disputed. On this account, the court, was requested to ask the applicant to desist from making such utterances during the pendence of the proceedings herein, to the media as in doing so they risk being punished for contempt and further added that the 1st defendant reserves the right to proceed and initiate contempt proceedings.

Turning to the issue of the preliminary objection filed, it is the first defendant counsels’ view that this should be disposed off first as they intend to raise points which if upheld will knock out the entire proceedings. The said issues are:-

(i).The suit is a nullity in law and an abuse of the court, process by reason of the fact that the applicants have not exhausted all the remedies available to them.

(ii).They wish to contend that the applicants have no locus standi to institute this suit.

(iii).Also that the suit is defective by reason of misjoinder of the parties.

(iv).Also that a wrong procedure has been invoked to present this suit.

Turning to disobedience to court orders they contend that the orders in HCCC No. 226/09 since the same were not issued by this court, the 1st defendants joins issue with the plaintiff/applicants as regards disobedience of the said orders.

In response, counsel for the plaintiff stated that allegations concerning the interview have just come from the bar and if the 1st defendant counsels’ felt aggrieved by the said utterances which counsel for the plaintiff/applicants is not aware of, he should have filed an application and filed affidavits. As such the complaint should be disregarded.

As for the request to raise the preliminary objection and have the same ruled upon before moving on to hear the application for interim orders, the counsel is of the opinion that the preliminary objection is just meant to delay the disposal of the interim application to defeat what the plaintiff/applicant is seeking to fore stall. It is their view that the points the 1st defendants’ counsel intends to raise can be incorporated in their opposition to the interim application to save on the courts time.

Due consideration has been made of the above rival arguments and the court proceeds to make the following findings:

1. The 1st defendant/Respondents’ replying affidavit as presently filed is defective in that it does not contain the portion containing the Jurat where it is supposed to indicate the date and place where commissioned and by whom commissioned. It therefore offends the provisions of section 5 of the oaths and statutory declarations Act cap 15 laws of Kenya which states:-

“5. Every commissioner for oaths before whom any oath or affidavit is taken or made under this Act, shall state fully in the Jurat or attestation at what place and on what date the oath or affidavit is taken or made”

For this reason the court, moves on its own motion to strike the same out but with leave to the 1st defendant/respondent to regularize the same forthwith, in the alternative not later than 7 days from todays date.

2. Concerning the 3rd plaintiffs/applicants interview to the media concerning the outcome of these proceedings, indeed, no documentary proof has been exhibited in the first instance and that though these are representations from the bar, the learned counsels sentiments being sentiments from senior counsel cannot be watered down or ignored. The reason being that as counsels and friends of the court, he was entitled to bring to the attention of the court, any conduct by all or one of the parties which is likely to prejudice the proceedings, once filed in court. All that the court, can say is that the warning should not be limited to the party who gave the interview. It should apply to all the participating parties. The court, therefore issues a warning to all the participating parties that they are not allowed to discuss the proceedings with the media, and if they do so, then they do so at the pain of facing penal consequences meted out either on the courts’. own motion or at the behest of any aggrieved party to the proceedings.

Turning to the request to have the preliminary objection heard first, the court, is of the opinion that had it not been for the allegation of the suit being a nullity, and the plaintiff/applicants having no locus standi, the court, would have safely ruled that the preliminary objection be incorporated in the opposition to the interim application. However by reason that if there is some tangible grounds on the basis of which it can be demonstrated that the suit is a nullity, and the plaintiff/applicants have no locus standi, then the two issues have to be taken on as preliminary points because in this courts’ view, a suit which is a nullity, can not anchor an interim application. Likewise a party without locus standi cannot complain or agitate any rights before a court of law. For this reason the preliminary objection will be argued first and forthwith.

DATED, READ AND DELIVERED AT NAIROBI THIS 15TH DAY OF JUNE 2009

R.N. NAMBUYE

JUDGE