[2013] KEHC 6121 (KLR)
The court found that selecting the Machakos CMCC No. 667 of 2008, a lower court case, as a test suit would be counterproductive because any judgment delivered there could be appealed to the High Court, effectively returning the issue of liability to the same court. This would not serve the interests of expediency or...
Source-derived case information.
- Citation
- [2013] KEHC 6121 (KLR)
- Parties
- Plaintiff: Patrick Mwangikaburu; Defendant: Shreenji Enterprises Ltd; Defendant: East African Development Bank Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 37 of 2009
- Procedural Posture
- Civil Case / Ruling on Interlocutory Application
- Outcome
- application dismissed with costs to the defendants
- Judges
- DW Mbuteti
- Legal Topics
- Test Suit Selection, Stay of Proceedings, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Mwangikaburu
Plaintiff
Shreenji Enterprises Ltd
Defendant
East African Development Bank Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Application
Legal Issues
- 1 Whether Machakos CMCC No. 667 of 2008 should be heard as a test suit to determine liability.
- 2 Whether proceedings in the present suit should be stayed pending determination of the Machakos case.
Ratio Decidendi
The court found that selecting the Machakos CMCC No. 667 of 2008, a lower court case, as a test suit would be counterproductive because any judgment delivered there could be appealed to the High Court, effectively returning the issue of liability to the same court. This would not serve the interests of expediency or judicial economy. The court further held that the plaintiff's anticipation of difficulties in prosecuting his case is not a valid basis for selecting a test suit. Therefore, the application lacked merit and was dismissed with costs to the defendants.
Court Disposition
application dismissed with costs to the defendants
Orders
- The plaintiff's application is dismissed.
- Costs awarded to the defendants.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
CIVIL CASE NO. 37 OF 2009
PATRICK MWANGIKABURU...............................………….PLAINTIFF
VERSUS
1 . SHREENJI ENTERPRISES LTD
2. EAST AFRICAN DEVELOPMMENT BANK LTD...........DEFENDANTS
R U L I N G
1. The Plaintiff’s notice of motion dated 6th February 2013 is brought under sections 1A, 1B & 3A of the Civil Procedure Act (the Act) and Order 38of the Civil Procedure Rules (the Rules) It seeks the main orders –
That Machakos CMCC No. 667 of 2008 be heard as a test suit to determine the issue of liability.
That pending hearing and determination of the said Machakos CMCC No. 667 of 2008, proceedings in this present suit be stayed.
2. The application is premised on the grounds that -
The defendants are the same in this and in the Machakos case.
There have been previous attempts to bring the two cases together but none has been of the nature of the current application.
This court has the judicial discretion and jurisdiction to grant the prayers sought.
The application is supported by the affidavit of P.W. Kariuki the Plaintiff's counsel sworn on 6th February 2013.
3. The Defendants have opposed the application in their grounds of opposition dated 15th March 2013. The main point taken is that it would not be desirable for a lower court case to be a test case when the same issue is before the High Court.
4. I respectfully agree with the sentiments expressed by the Defendants in this application. If the Machakos case which is pending before the lower court is selected as a test suit, the losing party in any judgment delivered by that court will have a right of appeal to this court. So, the issue of liability will have been thrown back to this court. In that event, where is the expediency? Would it not be more sensible and expedient that the present suit pending before this court be selected as the test suit?
5. It appears from the submissions of learned counsel for the Plaintiff that the present application was made merely because the Plaintiff anticipates some difficulties in prosecuting his case. That cannot be a proper basis for selecting a test suit.
5. This application is entirely without merit. It is dismissed with costs to the Defendants. It is so ordered.
DATED AND SIGNED AT NAIROBI THIS 4TH DAY OF JUNE 2013
H.P.G. WAWERU
JUDGE
DELIVERED AT NAIROBI THIS 7TH DAY OF JUNE 2013