[2014] KEHC 7326 (KLR)
The court found that the applicants had filed two motions seeking similar orders, with the earlier motion still pending. The applicants had been directed to serve the earlier motion upon the newly enjoined respondents but instead filed a fresh motion. The court held that this conduct amounted to an abuse of the...
Source-derived case information.
- Citation
- [2014] KEHC 7326 (KLR)
- Parties
- Applicant: Robinson Chesibo Ngeiywa; Applicant: Stanlous Mutai Kones; Respondent: Ben Nicodemus Omambia Mogaka; Respondent: Agricultural Finance Corporation; Respondent: Simplex Kenya Limited
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Commercial Civil Case 63 of 2004
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection sustained; motion struck out as abuse of process
- Judges
- EO Obaga
- Legal Topics
- Abuse of Process, Multiple Applications, Injunctions, Joinder of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Robinson Chesibo Ngeiywa
Applicant
Stanlous Mutai Kones
Applicant
Ben Nicodemus Omambia Mogaka
Respondent
Agricultural Finance Corporation
Respondent
Simplex Kenya Limited
Respondent
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the filing of a fresh motion when a similar earlier motion is pending constitutes an abuse of the process of court.
- 2 Whether the applicants should have withdrawn the earlier motion before filing a new one.
Ratio Decidendi
The court found that the applicants had filed two motions seeking similar orders, with the earlier motion still pending. The applicants had been directed to serve the earlier motion upon the newly enjoined respondents but instead filed a fresh motion. The court held that this conduct amounted to an abuse of the process of court. The proper procedure would have been to withdraw the earlier motion before filing a new one. The court concluded that the filing of the present motion was improper and struck it out with costs to the 2nd and 3rd respondents.
Court Disposition
preliminary objection sustained; motion struck out as abuse of process
Orders
- The applicants' notice of motion dated 29th September 2013 is struck out as an abuse of the process of court.
- Costs awarded to the 2nd and 3rd respondents.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
HC.CC.NO.63 OF 2004
ROBINSON CHESIBO NGEIYWA:...................................1ST PLAINTIFF/APPLICANT
STANLOUS MUTAI KONES..............................................2ND PLAINTIFF/APPLICANT
(Suing herein as legal representatives f the deceased JOHN NDARA KONES)
VERSUS
BEN NICODEMUS OMAMBIA MOGAKA .......... 1ST DEFENDANT/RESPONDENT
AGRICULTURAL FINANCE CORPORATION:..2ND DEFENDANT/RESPONDENT
SIMPLEX KENYA LIMITED:................................3RD DEFENDANT/RESPONDENT
RULING
At the hearing of the applicants' notice of motion dated 29th September 2013 a preliminary objection was taken on behalf of the 2nd and 3rd respondents on the ground that the filing of the motion was a flagrant abuse of the process of court in that there was a similar motion filed by the applicants which was still pending. The applicant herein had filed a motion dated 20. 2.2013 seeking orders similar to the ones in the present motion. A consent was recorded in the earlier motion with one of the respondents in which injunction orders were granted by consent. The 2nd and 3rd respondents who were not party to the suit resulting in the motion where a consent was recorded, applied to have the injunction orders discharged on the ground that the same was fraudulently recorded.
The 2nd and 3rd respondents were allowed to be enjoined as parties to the suit and the injunction orders granted by consent were set aside. The court ordered that the motion dated 20. 2.2013 be served upon the 2nd and 3rd respondents for hearing. Instead of the applicants serving the motion of 20. 2.2013 upon the 2nd and 3rd respondents, they filed a fresh motion which the 2nd and 3rd respondents wants struck out.
The applicants opposed the preliminary objection on the ground that the current motion was filed under different circumstances and that the applicant's would not have amended the earlier motion as it was not a pleading. Counsel for both parties cited High Court decisions in support of their respective positions.
I have considered the arguments as well as the cases cited and I have now to determine whether the preliminary objection ought to be sustained or not. There is no contention that the applicants have filed two motions which are seeking similar orders. It amounts to an abuse of the process of court for a party or parties to file a fresh application when there is a previous one which is still pending. If the applicants were serious about presenting the later motion they should have first sought to withdraw the earlier application before filing the present one. The cases cited by the applicants are not relevant to the issue at hand. The decisions were on whether there can be amendment to a notice of motion or chamber summons. The applicants had been directed to serve the motion of 20. 2.213 upon the 2nd and 3rd respondents who had been made parties to the suit. If the applicants felt that the motion could not be amended, then they should have sought leave of court to withdraw it and file afresh motion but not to file a fresh motion when the former is still subsisting. I find that the filing of the present motion is an abuse of the process of court. The same is hereby struck out with costs to the 2nd and 3rd respondents.
It is so ordered.
Dated, signed and delivered at Kitale on this 16th day of January 2014.
E. OBAGA
JUDGE
Mr. Kiarie for 2nd and 3rd Defendants/Respondents -Present
M/S Nyakibia for Mr. Waweru for Plaintiff/Applicant – Present
C/C - Kassachoon.
E. OBAGA
JUDGE