[2021] KEHC 6690 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

(CORAM: CHERERE-J)

CIVIL APPEAL NO. 74 OF 2009

BETWEEN

MICHAEL KUNGU KIGIA............................................................................................APPELLANT

VERSUS

KENYA NATIONAL UNION OF TEACHERS..................................................1ST RESPONDENT

MERU TEACHERS HOUSE................................................................................2ND RESPONDENT

(Being an Appeal from Ruling, Order and Decree in Meru CMCC No. 130 of 2005

by Hon. H. Ndungú (CM) on 15th August, 2018)

JUDGMENT

1. By a notice of motion dated 28th August, 2017, Appellant sought orders the following order:

1) Summary judgment on various grounds as stated on the body of the application including non-compliance with court orders

2) The firm of Nyamu & Co. advocates be stopped from representing his client

3) Order against the 2nd Respondent to stop execution in various suits

2. The application was opposed by the 2nd Respondent by way of a replying affidavit and a notice of preliminary objection that the application was an abuse of the court process and the orders sought were incapable of being granted. The 2nd Respondent further contended that the firm of Nyamu & Co. Advocates was properly on record and that the application refers to numerous cases and orders that the court was not privy to.

3. In a ruling dated 16th August, 2018, the trial court upheld the Preliminary Objection and dismissed the application for being vexatious and an abuse of the court process.

4. Concerning the firm of Nyamu & Co. Advocates, the court found that the allegation of conflict of interest was not proved and ruled that it was a constitutional right for a litigant to be represented by counsel of his/her choice and Applicant had no right to choose counsel for 2nd Respondent.

Appeal

5. Dissatisfied with the trial magistrate’s ruling, the Appellant has appealed mainly reiterating the same grounds that formed the basis of the dismissed application

6. I have considered the appeal in the light of the court record and submissions and authorities cited for the Appellant and 2nd Respondent.

7. In delivering the impugned ruling, the trial court placed reliance on MichaelKungu Kigia v Meru Teachers House Ltd Diretors Edward Dick Mugambi (Managing Director) & 12 others [2018] eKLR where Mbugua J in striking out the Appellant’s two Notices of Motion and Suit filed in two sets stated that

“Plaintiff is not capable of pin pointing when the cause of action arose as his claim is scattered in the myriad of cases before the tribunals, Magistrates Courts and High Court”.

8. Looking at the application before the trial magistrate which is replicated in this appeal, I find that the Learned Trial Magistrate finding that the Appellant’s claim could not be pin-pointed was well founded.

9. In addition, I also find that the trial magistrate rightly ruled that the best courts to deal with issues of disobedience of court orders were the same courts whose orders had been disobeyed.

10. Section 6 of the Civil Procedure Act is meant to prevent abuse of the court of process where parallel proceedings different courts. This is to obviate a situation where two courts arrive at different decisions on the same facts, evidence and cause of action. The filing of the application before the trial court seeking orders concerning matters in various other courts was clearly an abuse of court process and the trial court cannot therefore be blamed for so holding.

11. That the Appellant had filed numerous cases and was seeking orders on matters not before the trial court made it impossible for the trial magistrate to identify the Appellant’s claim with accuracy and precision and the magistrate in dismissing the Appellant’s application appropriately found that it was vexatiously incompetent and bad in law.

12. Concerning the firm of Nyamu Nyaga & Co. Advocates, the court correctly found that there was absolutely no procedural or substantive impediment in the representation of the 2nd Respondent by the said firm.

13. In the end and for the reasons given on the foregoing analysis, I have come to the conclusion that the decision by the Learned Trial Magistrate was well grounded in law and cannot be faulted. As a result, this appeal has no merit and it is dismissed with costs to the 2nd Respondent.

DATED AT MERU THIS 27th DAY OF May 2021

T. W. CHERERE

JUDGE

Court Assistant -Morris Kinoti

For Appellant - Present in person

For 1st Respondent - N/A

For 1st Respondent - Mr. Nyamu for Nyamu Nyaga & Co. Advocates