[2012] KEHC 3127 (KLR)
The court declined to entertain the judicial review application on the basis that there were already two High Court suits pending involving the same subject matter and parties. Entertaining the present application would risk conflicting decisions from courts of concurrent jurisdiction, contrary to the principle of...
Source-derived case information.
- Citation
- [2012] KEHC 3127 (KLR)
- Parties
- Applicant: Republic; Respondent: S.C. Muthee, Chief Building Inspector, Municipal Council of Mombasa; Respondent: Hon. M.K. Mwangi (S.R.M.), Municipal Court; Interested Party: Mohamed Hatimy; Interested Party: Hatimy Group Limited; Applicant: Salim Said Koi; Applicant: Dzombo Mwagambo; Applicant: Athman Hassan Mganga; Applicant: Kaingu Sanga; Applicant: Safari Kahindi; Applicant: Margaret M. Mutugi; Applicant: Abdulrahman Amigo; Applicant: Hamadi Ko; Applicant: Dondo Mukala alias Tolle Abaa; Applicant: Seif Moza; Applicant: Safari Manzi; Applicant: Said Musa; Applicant: Adam Abaas Swaleh; Applicant: Hassan Mohamed Nasser; Applicant: Hafswa Abdillahi; Applicant: Robert Omwenga; Applicant: David J.O. Otieno; Applicant: George Mwandenge; Applicant: Philip Asiyo; Applicant: Nassir Kabaya
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 345 of 2009
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Judicial Review (prohibition and Certiorari)
- Outcome
- Application declined; court abstains from ruling pending determination of earlier suits.
- Judges
- JV Juma
- Legal Topics
- Judicial Review, Stay of Proceedings, Multiplicity of Suits, Res Subjudice, Demolition Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
S.C. Muthee, Chief Building Inspector, Municipal Council of Mombasa
Respondent
Hon. M.K. Mwangi (S.R.M.), Municipal Court
Respondent
Mohamed Hatimy
Interested Party
Hatimy Group Limited
Interested Party
Salim Said Koi
Applicant
Dzombo Mwagambo
Applicant
Athman Hassan Mganga
Applicant
Kaingu Sanga
Applicant
Safari Kahindi
Applicant
Margaret M. Mutugi
Applicant
Abdulrahman Amigo
Applicant
Hamadi Ko
Applicant
Dondo Mukala alias Tolle Abaa
Applicant
Seif Moza
Applicant
Safari Manzi
Applicant
Said Musa
Applicant
Adam Abaas Swaleh
Applicant
Hassan Mohamed Nasser
Applicant
Hafswa Abdillahi
Applicant
Robert Omwenga
Applicant
David J.O. Otieno
Applicant
George Mwandenge
Applicant
Philip Asiyo
Applicant
Nassir Kabaya
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application for Judicial Review (prohibition and Certiorari)
Legal Issues
- 1 Whether the High Court should entertain the judicial review application when there are two pending suits involving the same subject matter and parties.
- 2 Whether the principle of res sub judice under Section 6 of the Civil Procedure Act bars the current application.
- 3 Whether the orders of prohibition and certiorari should be granted in light of the pending suits.
Ratio Decidendi
The court declined to entertain the judicial review application on the basis that there were already two High Court suits pending involving the same subject matter and parties. Entertaining the present application would risk conflicting decisions from courts of concurrent jurisdiction, contrary to the principle of res sub judice as codified in Section 6 of the Civil Procedure Act. The court emphasized the need to preserve the dignity of the courts and to avoid a multiplicity of suits over the same issues. Accordingly, the court held that it would better serve the interests of justice to have the earlier suits determined first before considering any further applications relating to the...
Court Disposition
Application declined; court abstains from ruling pending determination of earlier suits.
Orders
- The court declines to rule on the application at this stage.
- The earlier High Court suits involving the same subject matter and parties should be determined first.
Full Case Text
Judgment text and source record
51 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT MOMBASA
Civil Miscellaneous Application 345 of 2009
IN THE MATTER OF CRIMINAL CASE NO. (M). 3004 OF 2009 (MUNICIPAL COURT)
AND
IN THE MATTER OF AN APPLICATION FOR LEAVE TO FILE AN APPLICATION FOR JUDICIAL REVIEW ORDERS OF PROHIBITION AND CERTIORARI
BETWEEN
REPUBLIC ……………………………..………………………………………. APPLICANT
AND
1. S.C. MUTHEE, CHIEF BUILDING INSPECTOR, MUNICIPAL COUNCIL OFMOMBASA
2. HON. M.K. MWANGI (S.R.M.) – MUNICIPAL COURT …......................… RESPONDENTS
AND
1. MOHAMED HATIMY
2. HATIMY GROUP LIMITED …......................……………………… INTERESTED PARTIES
EX-PARTE APPLICANTS
1. SALIM SAID KOI
2. DZOMBO MWAGAMBO
3. ATHMAN HASSAN MGANGA
4. KAINGU SANGA
5. SAFARI KAHINDI
6. MARGARET M. MUTUGI
7. ABDULRAHMAN AMIGO
8. HAMADI KO
9. DONDO MUKALA ALIAS TOLLE ABAA
10. SEIF MOZA
11. SAFARI MANZI
12. SAID MUSA
13. ADAM ABAAS SWALEH
14. HASSAN MOHAMED NASSER
15. HAFSWA ABDILLAHI
16. ROBERT OMWENGA
17. DAVID J.O. OTIENO
18. GEORGE MWANDENGE
19. PHILIP ASIYO
20. NASSIR KABAYA
RULING
Before court is the Ex-parte applicant’s Notice of Motion dated 24th august 2009 seeking Judicial Review orders of –
“1. PROHIBITION/INJUNCTION directed to the interested parties herein restraining them or whoever acting on their behalf from proceeding with Criminal Case No. (M) 3004 of 2009, MUNICIPAL PROSECUTOR –VS- MOHAMED HATIMY and HATIMY GROUP LIMITED, and/or giving any further orders therein.
2)CERTIORARI directed to the 2nd Respondent to bring to the high Court to be quashed the 2nd Respondents Decision and/or Ruling and/or Judgement, ordering the interested parties and the 1st Respondent to demolish all structures on Plot Nos. 203/1/MN, 204/1/MN, 222/1/MN and 967/1/MN Bamburi.
3)That costs of this application be provided for”
The application was supported by the supporting affidavit of SALIM SAID KIO. MR. KENGA Advocate acted for the Ex-Parte Applicants, MR. KHATIB represented the Interested Parties whilst MR. ONSERIO represented the Honourable Attorney General. It was agreed by consent that the application be disposed of by way of written submissions and by 4th June 2012 all parties had duly filed their written submissions.
The subject matter of this application are the properties on Plot Nos. 203, 204, 221 and 967 Mainland North Bamburi (hereinafter referred to as the ‘suit property’). I have carefully considered the submissions made by counsel. It has come to my attention that there are two (2) other High Court suits pending in the High Court in Mombasa involving the same suit property and the same parties. These are HCCC 69 of 2007, HATIMY GROUP –VS- DZOMBO MWAGAMBO and 3 OTHERS and HCCC (OS) No. 76 of 2007 SALIM SAID KOI –VS- HATIMY GROUP. Certain pertinent orders have already been issued by the High Court in respect of the two pending suits. I am concerned that with full knowledge of the existence of the High Court suits the ex-parte Applicants have proceeded to file this present application to be heard by yet a third high Court Judge. This means that due to the several suits pending over the same subject matter there is likely to be issued conflicting decisions in each suit. This is not desirable at all. The parties must desist from engaging the courts in this type of merry-go-round. Filing of additional causes when suits are still pending over the same subject matter must be discouraged. I am mindful of Section 6 of the Civil Procedure Act which provides:
“No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties or between parties under whom they are any of them claim litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed”
There exist already two High court suits filed before this application was filed. In order to preserve the dignity of the courts and in order to avoid possible conflicting decisions by courts of concurrent jurisdiction I decline to rule on this matter at this stage as I feel it would better serve the interests of justice to have the two earlier suits determined first.
Dated and Delivered in Mombasa this 11th day of July 2012.
M. ODERO
JUDGE
In the presence of:
Mr. Were holding brief for Mr. Kibara for 1st Respondent
Mr. Hamza holding brief for Mr. Khatib and Mr. Kenga