[2020] KEHC 8445 (KLR)

Source-derived case information.

Citation: [2020] KEHC 8445 (KLR)
Parties: Plaintiff: Patrick Lihanda; Defendant: Antony Kenyakisa; Defendant: Albert Asigo; Defendant: Peter Inwani; Defendant: John Olemprokoi; Defendant: Fred Umuhano; Defendant: Zedekiah Orera; Defendant: Elijah Mikwa; Defendant: James Ogendi; Defendant: Nathan Ondego; Defendant: George Okello; Defendant: Arthur Amiga
Court: High Court
Court Station: High Court at Kisumu
Jurisdiction: Kenya
Case Number: Civil Case 19 of 2019
Procedural Posture: Miscellaneous Application / Ruling on Interlocutory Application for Transfer and Stay
Outcome: Application partially allowed; matters transferred; costs to plaintiff.
Judges: TW Cherere
Legal Topics: Transfer of Suits, Multiplicity of Suits, Abuse of Process, Injunctive Relief
Source Language: en

Civil Procedure Commercial and Corporate Transfer of Suits Multiplicity of Suits Abuse of Process Injunctive Relief

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Parties

Patrick Lihanda

Plaintiff

Antony Kenyakisa

Defendant

Albert Asigo

Defendant

Peter Inwani

Defendant

John Olemprokoi

Defendant

Fred Umuhano

Defendant

Zedekiah Orera

Defendant

Elijah Mikwa

Defendant

James Ogendi

Defendant

Nathan Ondego

Defendant

George Okello

Defendant

Arthur Amiga

Defendant

Procedural Posture

Miscellaneous Application / Ruling on Interlocutory Application for Transfer and Stay

Legal Issues

1 Whether the multiplicity of suits in various subordinate courts constitutes an abuse of court process.
2 Whether the matters should be transferred to the High Court in Kakamega for consolidation and determination.
3 Whether an order of injunction should issue restraining certain defendants from dealing with the specified bank account.

Ratio Decidendi

The court found that the existence of multiple suits in various subordinate courts involving substantially the same parties and subject matter as the present suit constitutes a risk of conflicting orders and an abuse of the court process. The High Court in Kakamega is already seized of most of the matters between the parties, as recognized in Kakamega Constitutional Petition No. 06 of 2018. The plaintiff's filing of the present application, in disregard of existing consolidation orders, demonstrates a lack of good faith and further complicates the litigation. In the interest of justice and judicial economy, the court held that it is prudent to transfer all related matters to the High...

Court Disposition

Application partially allowed; matters transferred; costs to plaintiff.

Orders

All listed subordinate court matters are transferred to the High Court in Kakamega for hearing and determination in Kakamega Constitutional Petition No. 06 of 2018.
The plaintiff shall bear the costs of this application.

Full Case Text

Judgment text and source record

67 paragraphs

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

CIVIL CASE NO. 19 OF 2019

BETWEEN

PATRICK LIHANDA.................................................................PLAINTIFF

AND

ANTONY KENYAKISA...................................................1ST DEFENDANT

ALBERT ASIGO..............................................................2ND DEFENDANT

PETER INWANI...............................................................3RD DEFENDANT

JOHN OLEMPROKOI.....................................................4TH DEFENDANT

FRED UMUHANO...........................................................5TH DEFENDANT

ZEDEKIAH ORERA........................................................6TH DEFENDANT

ELIJAH MIKWA..............................................................7TH DEFENDANT

JAMES OGENDI..............................................................8TH DEFENDANT

NATHAN ONDEGO........................................................9TH DEFENDANT

GEORGE OKELLO......................................................10TH DEFENDANT

ARTHUR AMIGA.........................................................11TH DEFENDANT

R U L I N G

1. By an application dated 08th October, 2019 filed on 09th October, 2019, the Plaintiff/ Applicant prays for orders THAT:

1) That this Honourable court be pleased to make an order of transfer to this court for hearing and final determination of the following matters:

i. KISUMU CMCC No. 543 of 2018 Tom Olendo vs Patrick Lihanda & Others

ii. HAMISI SRMCC. No. 15 of 2019 Stephen Karigu & Others Vs Patrick Lihanda & Others

iii. HAMISI SRMCC. No. 81 of 2018 Rev. George Okello v Trustees PAG Pastors and Staff Provident Fund

iv. MILIMANI CMCC. No. 1899 of 2019 Isaac Mjete vs Elkana Salamba & 3 Others

v. VIHIGA PMCC. No. 123 of 2019 Albert Asigo vs Patrick Lihanda & Others

vi. KISII CMCC. No. 156 of 2019 Bernard Mogusu & Others Vs James Ogendi & Others

vii. VIHIGA PMCC. No. 157 of 2019 Antony Kinyakisa vs Patrick Lihanda

viii. VIHIGA PMCC. No. 158 of 2019 Fred Oluhano vs Patrick Lihanda

ix. VIHIGA PMCC. No. 159 of 2019 Patrick Asigo vs Patrick Lihanda

x. KISUMU CMCC No. 421 of 2018 Antony Kinyakisa vs Patrick Lihanda

2. An order be issued staying the Order made in KISUMU CMCC No. 543 of 2018 Tom Olendo vs Patrick Lihanda & Others; HAMISI SRMCC. No. 15 of 2019 Stephen Karigu & Others Vs Patrick Lihanda & Others and VIHIGA PMCC. No. 123 of 2019 Albert Asigo vs Patrick Lihanda & Others

3. 2nd, 9th, 10th and 11th Defendants be injuncted by themselves, their servants, assigns, agents, servants and or whosoever claiming through them from accessing, withdrawing and/or dealing with A/C No. 995850100004069 at Bank of Baroda Kisumu Branch in the name of PAG-K PAG Pastors and Staff Provident Fund

2. The application is based on the grounds among others that the Defendants have filed a multiplicity of suits in the subordinate courts disregard of the PAG Church Constitution (1998), the subordinate courts have been issuing contradictory orders with a potential of bringing the dignity and integrity of the court into disrepute.

3. The application is supported by an affidavit sworn by the Plaintiff on 08th October, 2019 in which he reiterates the grounds on the face of the application.

4. The 1st, 2nd, 8th, 9th, 10th and 11th Defendants have opposed the application and the suit on the basis of the Grounds of Opposition dated 14th October, 2019 and filed on 17th October, 2019 mainly on the ground that a ruling made in Kakamega Constitutional Petition No. 06 of 2018 consolidated most of the matters between the parties. In his replying affidavit sworn on 16th October, 2019, the 1st Defendant reiterates the grounds of opposition and further states that some of the cases have been withdrawn. He further avers that HCCA NO. 28 OF 2019 arising from KISUMU CMCC No. 543 of 2018 Tom Olendo vs Patrick Lihanda & Othersand further that an application for stay of execution of the orders in John Juma & 2 others v Patrick Lihanda & another; Zedekiah Orera & 4 others (Interested Parties) [2018] eKLR (Kakamega Constitutional Petition No. 06 of 2018) is pending at the Court of Appeal in HCCA NO. 28 OF 2019.

5. The 5th Defendant by his replying affidavit sworn on 16th October, 2019 avers that this suit is sub judice due to existence of suits and applications with similar reliefs and the same subject matter.

6. I have considered the application in the light of the supporting affidavits, the responses and written submission by the parties.

7. It has been conceded that there are other cases pending before different courts filed by other parties against the Applicant and others by various parties most of whom are parties to this suit.

8. Flowing from the existence of multiplicity of suits with similar reliefs and the same subject matter, Njagi J in John Juma & 2 others v Patrick Lihanda & another; Zedekiah Orera & 4 others (Interested Parties)(Kakamega Constitutional Petition No. 06 of 2018) (above) stated as follows:

“The issues raised in this petition and other suits filed by other parties raises fundamentally similar issues. The multiplicity of suits filed by different parties have the potential to embarrass the judicial process if handled by different courts as the courts might issue conflicting orders.”

9. The foregoing order is still in force and I associate myself with that finding. The High Court in Kakamega is already seized of most of the matters between the parties herein and this information is within the knowledge of the Plaintiff.

10. The Plaintiff’s action of filing another suit in total disregard of the orders inJohn Juma & 2 others v Patrick Lihanda & another; Zedekiah Orera & 4 others (Interested Parties)(Kakamega Constitutional Petition No. 06 of 2018) (above) not only complicates issues but also leaves the court in no doubt that he is not displaying good faith and is bent on abusing the court process.

11. I therefore find that it would be prudent and in the interest of justice to have the matters herein transferred to that High Court in Kakamega for hearing and determination inJohn Juma & 2 others v Patrick Lihanda & another; Zedekiah Orera & 4 others (Interested Parties)(Kakamega Constitutional Petition No. 06 of 2018) (above).

12. It is therefore hereby ordered that:

1) An order be and is hereby issued transferring: