[2010] KEHC 3916 (KLR)
The court found that the present suit was filed while a similar suit between the same parties over the same subject matter was still pending before another court. This contravenes section 6 of the Civil Procedure Act, which prohibits the trial of a suit in which the matter in issue is also directly and substantially...
Source-derived case information.
- Citation
- [2010] KEHC 3916 (KLR)
- Parties
- Plaintiff: Namu Murigo; Defendant: Nyaga Cingano
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 77 of 2009
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Suit
- Outcome
- suit struck out with costs to defendant/applicant
- Judges
- J Karanja
- Legal Topics
- Abuse of Court Process, Pendency of Suit, Striking Out Suit, Section 6 Civil Procedure Act
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Namu Murigo
Plaintiff
Nyaga Cingano
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Suit
Legal Issues
- 1 Whether the present suit should be struck out for being frivolous, vexatious, embarrassing, and an abuse of the court process.
- 2 Whether the existence of a prior suit between the same parties over the same subject matter renders this suit incompetent under section 6 of the Civil Procedure Act.
Ratio Decidendi
The court found that the present suit was filed while a similar suit between the same parties over the same subject matter was still pending before another court. This contravenes section 6 of the Civil Procedure Act, which prohibits the trial of a suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties. The plaintiff/respondent did not contest the application or provide evidence that the earlier suit had been disposed of. The court concluded that the filing of the present suit amounted to a gross abuse of the court process and accordingly struck out the suit with costs to the defendant/applicant.
Court Disposition
suit struck out with costs to defendant/applicant
Orders
- The entire suit is struck out.
- Costs awarded to the defendant/applicant.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU
Civil Case 77 of 2009
NAMU MURIGO……………………………………………………….PLAINTIFF
VERSUS
NYAGA CINGANO…………………………………………………..DEFENDANT
R U L I N G
The applicant by his chamber summons dated 8/7/2009 is seeking orders that Civil Suit No. 77/2009 be struck out for being frivolous, vexatious, embarrassing and abuse of the court process. He also asks that the same be dismissed with costs. The main ground on which the application is grounded is that there is a pending suit before the Senior Resident Magistrate Siakago (RM CC No.29 2005) which involves the same parties over the same subject matter.
According to counsel for the defendant/Applicant therefore, this suit contravenes section 6 of the Civil Procedure Act and is also an abuse of the court process. He has supported with the application with the affidavit dated 8/7/2008 and attached several annexures which annexures clearly show the existence of Siakago SRM CC No.29 of 2005. The said suit is between the same parties herein. It relates to the same parcel of land i.e EMBU/RIAITUNE/1678 and they both seek the same orders. That suit precedes this one as it was filed on 21/9/2005 while this one was filed on 30/4/2009. The law does not allow both suits to subsist together. The earlier suit should have been withdrawn or dealt with in any other manner before a similar one was filed before this court. I have observed that the hearing notice ‘annexure CN6’ was in respect of the hearing schedule for 4/12/2008 which was long before this suit was filed. It is not therefore clear whether the earlier suit has been disposed of or it is still pending in court. That question could nonetheless only be answered by the plaintiff herein by way of rebuttal through a replying affidavit. There is no such affidavit on record. It is noted that the application was served on the Plaintiff/Respondent on 17/7/2009 as per the affidavit of service dated 3/11/2009. The same was not responded to. The only assumption this court can make therefore is that the application is not contested.
Be that as it may, I still find that the filing of this suit while a similar one was still pending before another court amounts to gross abuse of the court process. Accordingly, I allow this application and strike out the entire suit with costs to the defendant/applicant.
W. KARANJA
JUDGE
Delivered, signed and dated at Embu this 15th day of Feb 2010
In presence of:- Mr. Okwaro for Mr. Njegagua for Applicant
W. KARANJA
JUDGE