[2008] KEHC 1870 (KLR)
The court held that the applications before it were not brought under the relevant provisions of law for review, were based on extraneous grounds not previously raised, and were res judicata following the earlier dismissal of a similar application. The applicant was improperly seeking to have the court sit on appeal...
Source-derived case information.
- Citation
- [2008] KEHC 1870 (KLR)
- Parties
- Plaintiff: Palace Drycleaners Ltd; Applicant: George Gikubu Mbuthia; Respondent: Kenya Power & Lighting Co. Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 837 of 2000
- Procedural Posture
- Civil Case / Ruling on Two Notices of Motion Seeking to Set Aside Previous Orders and Certificate of Taxation
- Outcome
- applications dismissed with costs to the respondent; leave to appeal granted
- Judges
- JM Khamoni
- Legal Topics
- Review of Court Orders, Jurisdiction of High Court, Res Judicata, Taxation of Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Palace Drycleaners Ltd
Plaintiff
George Gikubu Mbuthia
Applicant
Kenya Power & Lighting Co. Ltd
Respondent
Procedural Posture
Civil Case / Ruling on Two Notices of Motion Seeking to Set Aside Previous Orders and Certificate of Taxation
Legal Issues
- 1 Whether the court has jurisdiction to set aside its previous orders and the certificate of taxation after dismissal of a similar application.
- 2 Whether the applications are properly before the court under the relevant provisions of law for review.
- 3 Whether the applications are res judicata in light of the previous ruling dismissing a similar application.
Ratio Decidendi
The court held that the applications before it were not brought under the relevant provisions of law for review, were based on extraneous grounds not previously raised, and were res judicata following the earlier dismissal of a similar application. The applicant was improperly seeking to have the court sit on appeal over its own and other judges' decisions, which is not permitted. The proper course for the applicant, having been granted leave to appeal, was to appeal to the Court of Appeal. The court further clarified that a mere defect in the summons does not affect the court's jurisdiction. Accordingly, both applications were dismissed with costs to the respondent.
Court Disposition
applications dismissed with costs to the respondent; leave to appeal granted
Orders
- The Notice of Motion dated 31st March 2008 is dismissed with costs to the respondent.
- The Notice of Motion dated 5th June 2008 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL CASE 837 OF 2000
PALACE DRYCLEANERS LTD....................................................1ST PLAINTIFF
GEORGE GIKUBU MBUTHIA..................................2ND PLAINTIFF/APPLICANT
VERSUS
KENYA POWER & LIGHTING CO. LTD...............DEFENDANT/RESPPONDENT
RULING
This is a suit which was filed in this court in May the year 2000 and as the Second Plaintiff George Gikubu Mbuthia points out, various judges in this court have handled the case. They include Justice Mbito, Justice Hayanga, Justice Ransley, Justice Mugo, Justice Visram and now myself. The Judgments or orders those other Judges were making may or may not have been infavour of the Second Plaintiff, but he seems to have been taking all those court orders as valid until he got my first court order in this matter dated 13th March, 2008 dismissing his Chamber Summons dated 15th February, 2008 purporting to challenge taxation of the Respondents bill of costs by the Taxing Officer.
When I dismissed that Chamber Summons, I granted leave to the Applicant to appeal against my decision. But instead of appealing, the Second Plaintiff now that Applicant before me has come back with two applications. A Notice of Motion dated 31st March, 2008 and Notice of Motion dated 5th June, 2008. While the Notice of Motion dated 31st March, 2008 mainly seeks orders to set aside the orders I made on 13th March, 2008, the Notice of Motion dated 5th June, 2008 only seeks an order to “set aside the certificate of taxation given by the Deputy Registrar on 5th day of September, 2007. ” It means the Notice of Motion dated 5th June, 2008 is a different framing of the Chamber Summons I dismissed dated 15th February, 2008.
During the hearing the Applicant appeared in person as before in my court while M/s Muema represented the Respondent. The First Plaintiff in the suit, Palace Drycleaners Limited have not been participating in proceedings before me.
The parties before me agreed to prosecute the two Notices of Motion together and it was surprising to see the Applicant abandoning all the other grounds in support of the two applications to confine himself to the ground of the jurisdiction of this court effective from time the suit was filed.
The Plaintiff in the suit was now telling me that his suit was void from the beginning and that therefore all the orders this court went on making, the court was making them when it had no jurisdiction to do so and that now I should set aside all those court orders including mine made on 13th March 2008. That is what the Applicant went on telling me during the hearing on 1st July, 2008 quoting a number of case authorities despite the fact that he had not included a prayer to that effect in the two Notices of Motion or either of them. M/s Muema must also have been surprised as indicated in her opposition to the two applications.
In the circumstances, I have decided to be brief in this ruling by stating as follows
Firstly, the Notice of Motion dated 31st March, 2008 has not been brought under relevant provisions of the law governing review of previous court orders or judgment if that is what was intended by the Applicant who included no prayer about the jurisdiction of this court.
Secondly, the Notice of Motion is based upon extraneous grounds or issues which were not before me for consideration at the time I heard and decided the Chamber Summons dated 15th February, 2008.
Thirdly, and concerning the Notice of Motion dated 5th June, 2008, the same is res judicata following the Applicant’s Chamber Summons dated 15th February, 2008 which the Applicant refers to as a Notice of Motion dated 15th February, 2008, heard and dismissed in my ruling dated 13th March, 2008.
Fourthly and general to both Notices of Motion before me, the Applicant in disguise in these two applications seeks to have me sit on an appeal not only against my own ruling but also against the orders or Judgments entered by my colleagues in this matter when I do not have the jurisdiction to do so. Having granted him leave to appeal, he ought to have appealed against my ruling to the Court of Appeal.
Moreover where a court of law has jurisdiction to entertain and determine a suit, a mere mistake in the relevant summons to enter appearance issued by the court and served, such as commanding the party served to enter appearance within a period of time other than the legally prescribed period of time if such really happened, does not take away that court’s jurisdiction to entertain and determine the suit.
Based upon the above reasons, the Applicant’s Notice of Motion dated 31st March 2008 as well as the Notice of Motion dated 5th June, 2008 be and are hereby each dismissed with costs to the Respondent.
Dated at Nairobi this 17th day of July, 2008.
J.M. KHAMONI
JUDGE
Further Order
Upon oral application by the Applicant George Gikubu Mbuthia, leave to appeal against this Ruling granted.
J.M. KHAMONI
JUDGE
17. 7.2008
Present
The Applicant in person
M/s Muema for the Respondent
Kabiru - Court Clerk.