[2014] KEHC 6171 (KLR)
The court found that the petitioners had already filed a previous suit (ELC No. 557 of 2009) involving the same parties and the same property, seeking substantially the same reliefs as in the present petition. The court held that the issues raised in the petition could be adequately addressed in the earlier suit,...
Source-derived case information.
- Citation
- [2014] KEHC 6171 (KLR)
- Parties
- Applicant: Maria Karaki & 13 Others; Respondent: Attorney General and 9 Others
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Petition 462 of 2013
- Procedural Posture
- Constitutional Petition / Ruling on Preliminary Objection/strike Out Application
- Outcome
- petition struck out as abuse of court process
- Judges
- DAS Majanja
- Legal Topics
- Abuse of Court Process, Res Judicata, Property Rights, Striking Out Petitions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Maria Karaki & 13 Others
Applicant
Attorney General and 9 Others
Respondent
Procedural Posture
Constitutional Petition / Ruling on Preliminary Objection/strike Out Application
Legal Issues
- 1 Whether the petition constitutes an abuse of court process due to the existence of a prior suit involving the same parties and subject matter.
- 2 Whether the petitioners are entitled to maintain a constitutional petition for property rights when similar reliefs are sought in a pending civil suit.
Ratio Decidendi
The court found that the petitioners had already filed a previous suit (ELC No. 557 of 2009) involving the same parties and the same property, seeking substantially the same reliefs as in the present petition. The court held that the issues raised in the petition could be adequately addressed in the earlier suit, which was still pending before a competent court. Maintaining the present petition would amount to an abuse of the court process, as it would result in duplicative litigation and potentially conflicting decisions. The court emphasized that while it should be cautious in striking out cases, the circumstances here left no doubt that the petition was improper and unnecessary....
Court Disposition
petition struck out as abuse of court process
Orders
- The petition is struck out.
- Costs awarded to the 6th to 10th respondents.
Full Case Text
Judgment text and source record
20 paragraphs
IN THE HIGH COURT
AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 462 OF 2013
(ELC. CIVIL CASE NO. 870 OF 2012)
BETWEEN
MARIA KARAKI & 13 OTHERS..............................PETITIONERS
AND
ATTORNEY GENERAL AND 9 OTHERS................RESPONDENTS
RULING
1. By a petition dated 10th October 2012, the petitioner moved the court of what they claim is a violation of their property rights under Article 40 of the Constitution. They claim that they are entitled to the property known as Land Reference No. 5173/R which was acquired by the respondents upon de-registration of Kasarani Farmers Cooperative Society Limited.
2. This matter came up for direction on 24th September 2013 and 18th March 2014 when I directed parties to file their replying depositions and written submissions. At the hearing today, counsel for the petitioners, sought to adjourn the matter but I rejected the same. He did not appear before the court when the matter was called out at 11. 25 am.
3. A perusal of the replying affidavit reveals that the petitioners have filed another case being Nairobi HC ELC NO. 557 of 2009 (previouslyHCCC 537 of 2009)betweenMachetha Kariuki and 6 others suing on their own behalf and on behalf of the representatives of Kasarani Farmers Cooperative Society v Samuel Githengi Mbugua and 10 others. In the amended plaint dated 10th January 2010, the plaintiffs seek nullification of any subdivision and transfer of LR No. 5173/R now known as LR No. 12825 (Grant IR 35930).
4. Mr Njagi, Counsel for the 6th to 10th respondents urged the court to strike out the petition as it is an abuse of the court process as it is in essence a suit for recovery of the same property under litigation in ELC No. 557 of 2009 and between the same parties and the previous suit is still pending. This position was supported by the 1st – 5th respondents who noted that the Commissioner of Lands and Registrar of Titles are parties to the previous suit.
5. I agree with the respondents that this petition cannot survive being struck out. The parties in both cases are the same and where they are not, they represent the same interest and act in the capacity of agitating proprietary rights in respect of LR 5173/R (Now LR No. 12825). The result sought to be reached in the petition is the same result in the earlier suit that is cancelling the titles issued in favour of some of the respondents. I am satisfied that all the issues raised in the petition can be raised in the earlier suit as it is one filed in the High Court with jurisdiction to adjudicate over violations of fundamental rights and freedoms.
6. The court should always be circumspect in striking out cases but this is a case where I am not in doubt that the petition filed is an abuse of the court process. The petitioners can seek the same reliefs in the previous suit. The petition is therefore struck out with costs to the 6th to 10th respondents.
DATED and DELIVERED at NAIROBI this 1st day of April 2014.
D.S. MAJANJA
JUDGE