[2022] KEHC 13616 (KLR)

Ndaka v Tekwara Services Limited & 2 others (Civil Suit E013 of 2022) [2022] KEHC 13616 (KLR) (5 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13616 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Suit E013 of 2022

GV Odunga, J

October 5, 2022

Between

Titus T Ndaka

Plaintiff

and

Tekwara Services Limited

1st Defendant

Richard Ombati Ratemo

2nd Defendant

Duke Mose Nyangate

3rd Defendant

Ruling

1. By a motion on notice dated August 2, 2022, the applicant herein seeks inter alia, orders that the following orders:a)Spentb)Spentc)That pending hearing and determination of this application the 2nd and 3rd defendants/respondents namely Duke Moses Nyangate and Richard Ombati Ratemo and/or their agents, assigns and or representatives be restrained by an injunction from;i.Signing any cheques, bank instructions by way of RTGS or any mode of transfer of funds of any forms of withdrawal of cash or funds from the said company’s bank account, opening any other new bank accounts or running any existing account and all funds currently deposited in all the company’s bank accounts, and especially KCB Bank, Murang’a Branch Account Number 1295164159, be frozen.ii.Denying the applicant the access to all books of accounts, records and other documents of the 1st defendant company.iii.Paying and/or pledging the company’s credit in any way without the applicant’s written approval or consent.d)That pending and hearing of this application the court be pleased to restrain the 2nd & 3rd defendants either by themselves or through their agents, assigns and or representatives from changing the composition and operation of the 1st defendant company.e)That pending the hearing and determination of this suit the court be pleased to restrain the 2nd and 3rd defendants either by themselves or through their agents, assigns and/or representatives from changing the composition and operation of the 1st defendant company.f)That the costs and incidentals to this application be provided for.

2. An issue has however been raised regarding the competency of this application. The facts surrounding that issue are largely not in dispute. The dispute herein was initially commenced vide a claim that was filed by the plaintiff in the principal magistrate’s court at Kithimani in Misc Application No E006 of 2022 (herein after the 'lower court ') vide an application dated on the July 5, 2022 in which he obtained injunctive orders similar to the orders sought in this application.

3. The respondents then filed Machakos High Court Judicial Review Application Number E005 of 2022 and after leave was granted the parties were directed to file their submissions and the matter was slated for ruling on August 11, 2022. However, before the court could render its decision in Machakos High Court Judicial Review Application Number E005 of 2022, the plaintiff filed this suit and sought for the same orders that were still in existence in Kithimani in Misc Application No E006 of 2022 and based thereon obtained some temporary reliefs and directed that this application to be mentioned on the August 11, 2022 for directions which was the same day when Machakos High Court Judicial Review Application Number E005 was slated for ruling.

4. When the parties appeared before this court on August 11, 2022, the plaintiff herein through his advocate conceded that the orders issued in the lower court were yet to be discharged and that the suit in the lower court was set for a mention on August 20, 2022 but informed this court that the plaintiff no longer wished to pursue the claim before the lower court and conceded to the respondents’ judicial review application and order sought thereto. Accordingly, the proceedings in the lower court were quashed.

5. As regards this particular matter, while the plaintiff’s advocate conceded that the substratum of the suit before the lower court is the same as this matter, her only contention was that the applicant had since filed a notice of withdrawal of the suit in the lower court.

6. It is however clear that the instant application was filed before the lower court proceedings were withdrawn. In the case of Theluji Dry Cleaners Ltd v Muchiri & 3 Others [2002] 2 KLR 764 Etyang, J said:'the legal position is that the notice of withdrawal of the earlier suit did not take effect from the date of its filing but from the date it was adopted as an order of the court when it was endorsed by the deputy registrar.'

7. In the case of Riverside Farm Nursery School Ltd & Another v The Cooperative Bank of Kenya Limited Nairobi (Milimani) HCCC NO 255 of 2008,Kimaru J (as he then was) expressed himself as follows:'It is clear to the court that the plaintiffs failed to disclose that they had previously filed a suit against the defendant’s predecessor and in the said suit the applied to be granted an order of injunction which application was considered by the court and subsequently dismissed. The plaintiffs were therefore guilty of material non-disclosure. Although the plaintiffs claimed that they had withdrawn the previous suit before filing the present one, it was apparent to the court that the plaintiffs filed a notice of withdrawal of the previous suit a day before the filing of the present suit. There is no evidence that the notice of the withdrawal was endorsed by the court. A suit is only deemed as withdrawn when an order of the court is endorsed in the file approving such withdrawal. A party cannot argue that he has withdrawn a suit on the basis of a notice of withdrawal of suit. The failure by the plaintiffs to disclose to the court the fact that they had previously made a similar application for injunction means that they are undeserving of the exercise of the equitable jurisdiction of the court. It was apparent that the plaintiffs set out to dupe and mislead the court into granting them ex parte interim reliefs pending the hearing and determination of the application. The court’s equitable jurisdiction was invoked by the plaintiffs when they clearly knew that they had unclean hands. In the circumstances it is evidence that the plaintiffs have failed to establish a prima facie case. In fact they have abused the due process of the court in canvassing an application similar to the one that was previously disallowed by the court without disclosing such fact to the court'.

8. It therefore follows that the lower court proceedings were in existence until the date they were quashed by this court. It follows that the filing of the instant application was caught up by the doctrine of sub judice. While those proceedings may have been quashed, it remains that the institution of the present application was an abuse of the process of this court since it had effect of vexing the respondents by subjecting them to two sets of proceedings over the same dispute.

9. In Mitchell and Others vs Director of Public Prosecutions and Another [1987] LRC (const) 128, it was held that:'in civilized society legal process is the machinery used in the courts of law to vindicate a man’s rights or to enforce his duties. It can be used properly, it can be used improperly, and so abused. An instance of this is where it is diverted from its proper purpose, and is used with some ulterior motive, for some collateral one or to gain some collateral advantage, which the law does not recognize as legitimate use of that process. But the circumstance in which abuse of process can arise are varied and incapable of exhaustive listing. Sometimes it can be shown by the very steps taken and sometimes extrinsic evidence only. But if and when it is shown it happened, it would be wrong to allow the misuse of that process to continue. Rules of court may and usually do provide for its frustration in some instance. Others attract the res judicata rule. But apart from and independent of these there is the inherent jurisdiction of every court of justice to prevent an abuse of its process and its duty to intervene and stop proceedings, or put an end to it. This inherent power has been used time and again to put a summary end to a process which seeks to raise and have determined an issue which has been decided against the party issuing it in earlier proceedings between the parties.'

10. In dealing with the issue of abuse of the process of the court Kimaru, J (as he then was) in Stephen Somek Takwenyi & Another v David Mbuthia Githare & 2 Others Nairobi (Milimani) HCCC No 363 of 2009 expressed himself as follows:'This is a power inherent in the court, but one which should only be used in cases which bring conviction to the mind of the court that it has been deceived. The court has an inherent jurisdiction to preserve the integrity of the judicial process. When the matter is expressed in negative tenor it is said that there is inherent power to prevent abuse of the process of the court. In the civilised legal process it is the machinery used in the courts of law to vindicate a man’s rights or to enforce his duties. It can be used properly but can also be used improperly, and so abused. An instance of this is when it is diverted from its proper purpose, and is used with some ulterior motive for some collateral one or to gain some collateral advantage, which the law does not recognise as a legitimate use of the process. But the circumstances in which abuse of the process can arise are varied and incapable of exhaustive listing. Sometimes it can be shown by the very steps taken and sometimes on the extrinsic evidence only. But if and when it is shown to have happened, it would be wrong to allow the misuse of that process to continue. Rules of court may and usually do provide for its frustration in some instances. Others attract res judicata rule. But apart from and independent of these there is the inherent jurisdiction of every court of justice to prevent an abuse of its process and its duty to intervene and stop the proceedings, or put an end to it.'

11. Similarly, Kimaru, J in Rev Madara Evans Okanga Dondo v Housing Finance Company of Kenya Nakuru Hccc No 262 of 2005 held:'The court will always invoke its inherent jurisdiction to prevent the abuse of the due process of the court. The jurisdiction of the court, which is comprised within the term 'inherent', is that which enables it to fulfil itself, properly and effectively, as a court of law. The overriding feature of the inherent jurisdiction of the court is that it is part of procedural law, both civil and criminal, and not part of the substantive law; it is exercisable by summary process, without plenary trial, it may be invoked not only in relation to the parties in pending proceedings, but in relation to anyone, whether a party or not, and in relation to matters not raised in litigation between the parties; it must be distinguished from the exercise of judicial discretion; it may be exercised even in circumstances governed by rules of the court. The inherent jurisdiction of the court enables the court to exercise control over process by regulating its proceedings, by preventing the abuse of the process and by compelling the observance of the process. In sum, it may be said that the inherent jurisdiction of the court is virile and viable doctrine and has been defined as being the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them.'

12. Satya Bhama Gandhi v Director of Public Prosecutions & 3 others [2018] eKLR, where the court pronounced itself as follows:'23. The situation that may give rise to an abuse of court process are indeed in exhaustive, it involves situations where the process of court has not been or resorted to fairly, properly, honestly to the detriment of the other party. However, abuse of court process in addition to the above arises in the following situations:-

(a)Instituting a multiplicity of actions on the same subject matter, against the same opponent, on the same issues or multiplicity of actions on the same matter between the same parties even where there exists a right to begin the action.(b)Instituting different actions between the same parties simultaneously in different court even though on different grounds.(c)Where two similar processes are used in respect of the exercise of the same right for example a cross appeal and respondent notice.(d)Where an application for adjournment is sought by a party to an action to bring another application to court for leave to raise issue of fact already decided by court below.(e)Where there no iota of law supporting a court process or where it is premised on recklessness. The abuse in this instance lies in the inconvenience and inequalities involved in the aims and purposes of the action.[13](f)Where a party has adopted the system of forum-shopping in the enforcement of a conceived right.(g)Where an appellant files an application at the trial court in respect of a matter which is already subject of an earlier application by the respondent at the Court of Appeal.(h)Where two actions are commenced, the second asking for a relief which may have been obtained in the first. An abuse may also involve some bias, malice or desire to misuse or pervert the course of justice or judicial process to the irritation or annoyance of an opponent.'

13. Abuse of judicial process is therefore a term generally applied to a proceeding which is wanting in bona fides and is frivolous vexations and oppressive. Abuse of process can also mean abuse of legal procedure or improper use of the legal process and it may occur where a create a factual scenario where he is pursuing the same matter by two court process hence engaging in some gamble or a game of chance to get the best in the judicial process.’

14. It’s settled law that a litigant has no right to purse paripasu a two processes which will have the same effect in two courts either at the same time or at different times with a view of obtaining victory in one of the process or in both. Litigation is not a game of chess where players outsmart themselves by dexterity of purpose and traps. On the contrary, litigation is a contest by judicial process where the parties place on the table of justice their different position clearly, plainly and without tricks.

15. In the premises motion on notice dated August 2, 2022 is an abuse of the court process. It is hereby struck out with costs to the respondents.

G V ODUNGAJUDGERULING READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 5TH DAY OF OCTOBER, 2022M W MUIGAIJUDGEDelivered the presence of: