[2016] KEHC 1418 (KLR)
The court found that the appellant's application sought to introduce new matters, specifically the issue of filmed tapes and barring the respondent from practice, which were not part of the original suit or the appeal and thus could not be entertained at the appellate stage. The main prayer for deposit of documents...
Source-derived case information.
- Citation
- [2016] KEHC 1418 (KLR)
- Parties
- Appellant: Peter Kinyanjui; Respondent: Ann Wambui Ngugi
- Court
- High Court
- Court Station
- High Court at Murang'a
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 55 of 2014
- Procedural Posture
- Civil Appeal / Ruling on Interlocutory Application Pending Appeal
- Outcome
- application dismissed with costs to the respondent
- Judges
- DW Mbuteti
- Legal Topics
- Res Judicata, Limitation of Actions, Interlocutory Applications, Professional Undertakings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Kinyanjui
Appellant
Ann Wambui Ngugi
Respondent
Procedural Posture
Civil Appeal / Ruling on Interlocutory Application Pending Appeal
Legal Issues
- 1 Whether the application introduces new matters not part of the original suit or appeal.
- 2 Whether the court should order the respondent to deposit disputed documents pending appeal.
- 3 Whether the respondent should be barred from representing parties in court based on disciplinary findings.
Ratio Decidendi
The court found that the appellant's application sought to introduce new matters, specifically the issue of filmed tapes and barring the respondent from practice, which were not part of the original suit or the appeal and thus could not be entertained at the appellate stage. The main prayer for deposit of documents was also refused because the underlying suit had been dismissed as time-barred and res judicata, leaving no pending suit to support such interlocutory relief. The court emphasized that any such orders could only be considered if the appeal succeeded and the suit was reinstated. The application was therefore dismissed as misconceived and procedurally improper.
Court Disposition
application dismissed with costs to the respondent
Orders
- The notice of motion dated 02/12/2014 is dismissed with costs to the respondent.
- The earlier application dated 07/11/2014 is deemed withdrawn with liberty to apply in respect to costs.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MURANG’A
CIVIL APPEAL NO 55 OF 2014
PETER KINYANJUI………..…………………………………… APPELLANT
VERSUS
ANN WAMBUI NGUGI…………........…..........….....…............RESPONDENT
R U L I N G
1. The Appellant herein, Peter Kinyanjui (who was plaintiff in the lower court), filed suit against the Respondent (defendant) by plaint dated 02/05/23014 seeking release of unspecified documents by the Respondent, general damages for breach of professional undertaking, costs and interest. The Respondent is an advocate of this court.
2. The Respondent entered appearance and filed defence. She denied the Appellant’s allegations of fact and also raised the defences of res judicata and time-limitation. She also denied the court’s jurisdiction to hear and determine the suit.
3. Together with his plaint the Appellant had filed before the lower court notice of motion dated 02/05/2014 in which he sought the main order that the Respondent be ordered “to release my set of documents for onward transmission to the Office of Director of Public Prosecutions”. The application was opposed. In a considered ruling delivered on 02/07/2014 the lower court ruled that the Appellant’s suit was both statute-barred by limitation and res judicata. The suit was dismissed with costs. That is the order that the Appellant appealed against in this appeal.
4. The Appellant, after filing the appeal in July 2014, filed a notice of motion dated 07/11/2014 in which he sought three main orders –
(i) That the Respondent be ordered “to deposit the disputed documents, namely Certificate of Lease of Plot Number 5556/097, Transfer Forms of the said Plot, Sale Agreement and the Deed Plan of the same Plot, into the custody of (the) court until (the) appeal is heard and determined”.
(ii) That the Respondent be ordered to surrender “the filmed tapes she took the Applicant on 12/08/2014 as per the OB Number 20/12/8/201 at Thika Police Station at 9. 45 a.m. to this…court”.
(iii) That the Respondent be barred from representing any party in court “since the Disciplinary Committee has found her guilty in professional undertaking by holding the Applicant’s money and the documents in question in Miscellaneous Cause No 104 of 2014 plus other Public Complaints on money related issues”.
There is a supporting affidavit sworn by the Appellant.
5. Without prosecuting the aforesaid application, the Appellant filed another similar application seeking the same. This is the notice of motion dated 02/12/2014, which is the subject of this ruling. In a supplementary affidavit filed on 23/06/2015 the Appellant explained that he filed this latter application under the mistaken belief that the application of 07/11/2014 had been heard and dismissed! For purposes of an orderly record, the earlier application by notice of motion dated 07/11/2014 is hereby deemed to have been withdrawn with liberty to apply in respect to costs.
6. The Respondent opposed the application by grounds of objection dated 29/10/2015. Those grounds are –
(i) That the application “tends to introduce new matters which are not issues to be determined in this appeal”.
(ii) That the Appellant is “trying to circumvent the hearing of the appeal…..” by the filing of this application.
(iii) That the Appellant should rather expeditiously prosecute his appeal.
7. I heard the notice of motion dated 02/12/2014 on 12/04/2016. I have considered the Appellant’s submissions and those of the Respondent’s learned counsel.
8. The issue involving video or film of the Appellant allegedly taken by the Respondent on 12/08/2014 is outside the ambit of the Appellant’s suit filed before the lower court. That is a matter that cannot be introduced at this late (appellate) stage. It ought, of its own, to found a new and separate cause of action.
9. The same applies to the prayer that the Respondent be barred from representing any party in court allegedly because the Disciplinary Committeeof the Law Society of Kenya has found her “unfit and a threat to the public and clients”.
10. As for the main prayer that the Respondent be ordered to deposit the “disputed” documents, it is to be noted that the lower court dismissed the Appellant’s suit upon the grounds that it is both time-barred by limitation and res judicata. So, there is no suit pending. Should this court reinstate the suit, however, upon hearing the appeal, then there would be a proper cause to seek that order. It is therefore in the Appellant’s interest that he prosecutes his appeal as expeditiously as possible; in this connection I note that he filed the necessary record of appeal on 27/11/2014.
11. The upshot is that the Appellant’s application by notice of motion dated 02/12/2014 is refused. It is hereby dismissed with costs to the Respondent. It is so ordered.
DATED, SIGNED AT MURANG’A THIS 26TH DAY OF MAY 2016
H P G WAWERU
JUDGE
DELIVERED AT MURANG’A THIS 27TH DAY OF MAY 2016