[2013] KEHC 242 (KLR)
The court held that the applicant's attempt to introduce new evidence and seek orders through a miscellaneous application, rather than within the original suits, was procedurally improper. The court emphasized that its jurisdiction must be properly invoked according to established procedures to maintain legal...
Source-derived case information.
- Citation
- [2013] KEHC 242 (KLR)
- Parties
- Applicant: Malindi Masketeers Limited; Respondent: The Hon. Attorney General; Respondent: The Land Registrar, Kilifi; Respondent: Ernest Kahiro Kimani; Respondent: Karisa Mole Mbitha
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 32 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objections and Application to Introduce Forensic Report
- Outcome
- application struck out with costs to the respondents
- Judges
- CW Meoli
- Legal Topics
- Abuse of Process, Jurisdiction of Court, Procedure for Introducing New Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Malindi Masketeers Limited
Applicant
The Hon. Attorney General
Respondent
The Land Registrar, Kilifi
Respondent
Ernest Kahiro Kimani
Respondent
Karisa Mole Mbitha
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objections and Application to Introduce Forensic Report
Legal Issues
- 1 Whether the applicant could properly invoke the court's jurisdiction to introduce new evidence via a miscellaneous application rather than in the original suits.
- 2 Whether the procedure adopted by the applicant was proper under the Civil Procedure Act and Constitution.
- 3 Whether the proceedings amounted to an abuse of court process.
Ratio Decidendi
The court held that the applicant's attempt to introduce new evidence and seek orders through a miscellaneous application, rather than within the original suits, was procedurally improper. The court emphasized that its jurisdiction must be properly invoked according to established procedures to maintain legal certainty and avoid abuse of process. The application was deemed an unprocedural attempt to revisit issues already determined or reserved for ruling in the original suits. The preliminary objections raised by the respondents were upheld, and the proceedings were struck out as an abuse of the court process.
Court Disposition
application struck out with costs to the respondents
Orders
- The present proceedings are struck out with costs to the respondents.
Full Case Text
Judgment text and source record
43 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT MALINDI
MISCELLANEOUS APPLICATION NO. 32 OF 2012
IN THE MATTER OF: MALINDI HIGH COURT CIVIL SUIT NO.186 OF 2011 (OS),
MALINDI MASKETTEERS LIMITED
=VERSUS=
THE HON. ATTORNEY GENERAL
THE LAND REGISTRAR, KILIFI
ERNEST KAHIRO KIMANI
AND
IN THE MATTER OF: MALINDI HIGH COURT CIVIL SUIT NO.182 OF 2011 (OS)
MALINDI MASKETEERS LIMITED
=VERSUS=
1. THE HON. ATTORNEY GENERAL
2. THE LAND REGISTRAR, KILIFI
3. KARISA MOLE MBITHA
AND
IN THE MATTER OF: SECTION 3A, 1A, 1B OF THE CIVIL PROCEDURE RULES CAP 21 LAWS OF KENYA
AND
IN THE MATTER OF: ARTICLES 35 AND 159 OF THE CONSTITUTION OF THE REPUBLIC OF KENYA
AND
IN THE MATTER OF: THE KENYA POLICE FORENSIC DOCUMENT EXAMINATION REPORT DATED 10TH AUGUST, 2012
BETWEEN
MALINDI MASKETEERS LIMITED.....................APPLICANT
=VERSUS=
THE HON. ATTORNEY GENERAL ….............RESPONDENT
RULING
The Notice of Motion filed by the Applicant in what appears to be Judicial Review proceedings brought without leave, sought three key orders:
That this application be certified as urgent and service thereof be dispensed with in the first instance.
That the final and comprehensive forensic report by the Kenya Police on Forensic Document examination is now ready for presentation
That this honorable court which is due to give a ruling on the application dated 23rd August, 2012 be pleased to order and direct the District Criminal Investigation Officer, Malindi (DCIO) to present, submit or facilitate the final document examination report dated 23rd August, 2012 to the Court, make a proper finding and ruling on the application dated 23rd August 2012 in the interest of justice.”
The substance of the grounds cited is that the Applicant has since the reservation of the ruling now sought to be “suspended” or “deferred” in HCCC No. 186 OF 2011 come across certain important evidence.
The application is expressed to be brought under Article 35 and 135 of the Constitution and Section 1A, 1B and 3A of the Civil Procedure Act.
Not surprisingly, the Respondents took issue with the procedure adopted by the Applicant and raised preliminary objections. These question the propriety of the proceedings and the jurisdiction of the court.
In particular, the 1st Respondent has argued that under Section 193A of the Criminal Procedure Code, civil and criminal proceedings can run in tandem hence the criminal complaint filed by the applicant need not be tied up with proceedings in HCC 186 of 2011.
The applicant seeks refuge in Articles 35 and 159 of the Constitution, as well as Section 1A, 1B and 3A of the Civil procedure Act.
I have considered the submissions made by the respective parties. The proceedings before me are confusing. They relate to an existing civil matter. If the Applicant has discovered any new matter or evidence, there is a definite procedure for invoking the jurisdiction of the court. That however, ought to be done in the specific suits and not in a separate matter. Neither Article 159(2) nor the Civil Procedure Act grants the court a discretion to grant the sort of orders sought by the Applicant, by the procedure it has adopted.
The court's jurisdiction must be properly invoked, as much as possible to avoid anarchy through dilution of certainty of the operation of the law. The Applicant is a party in the two causes in which it seeks orders and, in particular, did participate in proceedings leading to the reserved ruling. The present proceedings in my opinion amount to an unprocedural attempt to have another bite at the cherry and is an abuse of the court process.
In any event ruling was delivered in HCC 186 of 2011 (OS) on 15th April, 2013 and did not turn on the matters the Applicant was seeking to introduce. Rather, an objection had been raised and was upheld regarding the commencement of that suit by the Plaintiff therein without the relevant company resolution. I uphold the Preliminary Objections raised in this matter and will order the present proceedings struck out with costs to the Respondents.
Delivered and signed at Malindi this 25th day of November, 2013 in the presence of Mr. Obaga holding brief for Mr. Kilonzo for 2nd and 3rd Respondent.
Court clerk – Samwel
C. W. Meoli
JUDGE