[2007] KEHC 3031 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

(MILIMANI LAW COURTS)

Divorce Cause 5 of 2004

PETER MWENDWA KITHOME……………….. PETITIONER/APPLICANT

VERSUS

TERESIA NJERI KINYARI………………….. RESPONDENT/DEFENDANT

RULING

On 01. 03. 07 chamber summons application dated 19. 01. 07 came up for hearing before me. The petitioner/applicant was represented by learned counsel, Miss N. Muteti while the respondent to the petition who is also respondent to the present application (respondent/respondent) was represented by learned counsel, Mr. C.W. Wamae.

Respondent’s counsel drew the court’s attention to a preliminary objection dated 24. 01. 07 which he had filed the same day. The essence of the preliminary objection is that a similar chamber summons application dated 27. 09. 05 had been filed the same day (27. 09. 05) by the petitioner/applicant in the present chamber summons application dated 19. 01. 07 is res judicata;that on 25. 05. 06 the earlier application of 27. 09. 05 was dismissed with costs by Rawal, J and that, therefore, the present application is res judicata. It was also contended by the respondent that the petitioner/applicant in the present application had not come to court with clean hands as he failed to comply with a mandatory condition of a court order of 19. 01. 07 that he should serve the respondent the same day but instead he served the respondent on 22. 01. 07. Respondent’s counsel contended that the petitioner/applicant should, if dissatisfied with the dismissal of his earlier application of 27. 09. 05 on 25. 05. 06, have applied for the dismissal order to be set aside instead of filing a similar application afresh.

On the other hand the petitioner/applicant opposed the preliminary objection, contending that the chamber summons application dated 19. 01. 07 is rightly before this court. She said when the earlier chamber summons application dated 27. 09. 05 went before Rawal, J on 25. 05. 06, it was dismissed for non-attendance of the counsel, Mr. Kandie Kimutai, then on record for the petitioner/applicant and that the application was not argued and dismissed on merit. Counsel for petitioner/applicant informed this court that Mr. Kandie Kimutai died in 2006 (Mr. Wamae for respondent confirmed Kandie’s death which he said occurred in February, 2006). Counsel for petitioner/applicant pointed out that the respondent had filed grounds of opposition dated 24. 05. 06 on 25. 05. 06 opposing the chamber summons application of 27. 09. 05. She argued that had the respondent successfully argued those grounds on 25. 05. 06 and got the chamber summons application of 27. 09. 05 dismissed after substantive argument, then res judicata would apply to any subsequent similar application like the present one of 19. 01. 07, and it would have been incumbent on the respondent to apply for the setting aside of the dismissal order of 25. 05. 06. She contended that the present application is similar to matters under Order IXB of the Civil Procedure Rules which permits the filing of a fresh application in place of application dismissed for non-attendance if the fresh application is within limitation period. Petitioner’s/applicant’s counsel argued in the alternative that her client (petitioner/applicant) had the option to apply for setting aside of the dismissal order of 25. 05. 06 but that the petitioner/applicant opted to file the present fresh chamber summons application dated 19. 01. 07. Petitioner’s/applicant’s counsel said the present chamber summons application dated 19. 01. 07 is under section 32 of the Matrimonial Causes Act, Cap.152; that it is rightly or properly before court; that it has merit and that the preliminary objection should be dismissed to facilitate the hearing of the application on merit.

In reply, respondent’s counsel informed this court that the date of 25. 05. 06 for hearing of the chamber summons application of 27. 09. 05 was taken by consent of the parties on 20. 04. 06 and that the dismissal order of 25. 05. 06 was as a result of the court upholding the respondent’s grounds of opposition dated 24. 05. 06. Respondent’s counsel contended that under Order IXB, the only remedy is reinstatement of the application dismissed for non-attendance, not the filing of a fresh application. Respondent’s counsel urged this court to uphold the preliminary objection.

I have given due consideration to the submissions and counter-submissions of the parties through their respective Advocates.

I note from paragraph 6 of the petitioner’s/applicant’s affidavit sworn on 19. 01. 07 in support of his present application that he acknowledges filing an earlier chamber summons application dated 27. 09. 05 relating to the matters coming up for consideration in the present application. That earlier application is annexed to the petitioner’s/applicant’s affidavit sworn on 19. 01. 07 as ‘PMKI’. Prayers 2, 3 and of 27. 09. 05 are in the following terms:

‘2 THAT this Honourable Court be pleased to grant leave to the Petitioner/Applicant to file his affidavit of means out of time.

3. THAT the affidavit of means annexed herein be deemed as duly filed.

4. THAT this Honourable Court be pleased to set aside and vary the ex-parte orders given on the 3rd day of June 2005 pending hearing and determination of the application herein.’

That is the application which came up for hearing before Rawal, J on 25. 05. 06 and dismissed for non-attendance of the applicant.

It is true as intimated by petitioner’s/applicant’s counsel to this court that no substantive hearing of the application took place on that date. It must be noted, however, that in that application the petitioner/applicant first and foremost sought leave to file an affidavit of means out of time. Dismissal of the application, even on the procedural ground of his non-attendance, means the leave to file his affidavit of means out of time as not obtained. That was in September, 2005. In the present application, the petitioner/applicant seeks variation of the orders issued on 03. 06. 05, which are the same orders he applied to have set aside vide his earlier chamber summons of 27. 09. 05 which was dismissed for his non-attendance.

The petitioner’s/applicant’s basis for now seeking variation of the same orders seems to be his affidavit sworn on 19. 01. 07 whose purport is that his income is lower than the court was made to believe when it ordered against him the payment of the level of alimony pending suit which he wants to challenge. No question of seeking leave to file an affidavit of his means out of time features in the petitioner’s/applicant’s present application. If leave to file his affidavit of means out of time was required in September, 2005 as he conceded in his earlier application and the said leave was not granted, common sense dictates that such leave was required even more in January, 2007 when the petitioner/applicant filed his present application and purported to file a supporting affidavit to the same effect as an affidavit of means without the leave of the court. The apparent pretence by the petitioner/applicant that he no longer required leave to file his affidavit of means out of time lends credence to the respondent’s claim to the effect that the present chamber summons application dated 19. 01. 07 has not been brought in good faith. It amounts to sharp practice and this court will not countenance it. The correct course for the petitioner/applicant is to seek the setting aside of the court order of 25. 05. 06 dismissing his earlier chamber summons dated 27. 09. 05 and move the court for the said application to be heard.

The upshot is that the chamber summons application dated 19. 01. 07 is hereby dismissed. Costs shall be in the cause.

Orders accordingly.

Delivered at Nairobi this 9th day of March, 2007.

B.P. KUBO

JUDGE