[2010] KEHC 986 (KLR)
The court found that the appellant had filed two separate but identical appeals arising from the same original suit, Kilgoris RMCC No. 64 of 2004. The court determined that this amounted to an abuse of the court process. The appellant's argument that the application was premature was rejected, as the duplicity was...
Source-derived case information.
- Citation
- [2010] KEHC 986 (KLR)
- Parties
- Appellant: South Nyanza Sugar Co. Ltd.; Respondent: Samson Omenge Moseti
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 362 of 2005
- Procedural Posture
- Civil Appeal / Ruling on Application to Strike Out Appeal
- Outcome
- appeal struck out as duplicative and abuse of process
- Legal Topics
- Abuse of Court Process, Duplicity of Proceedings, Striking Out Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
South Nyanza Sugar Co. Ltd.
Appellant
Samson Omenge Moseti
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Strike Out Appeal
Legal Issues
- 1 Whether the present appeal is a duplicity of Kisii HCCA No. 341 of 2005 and thus an abuse of court process.
- 2 Whether the appeal should be struck out for duplicity.
Ratio Decidendi
The court found that the appellant had filed two separate but identical appeals arising from the same original suit, Kilgoris RMCC No. 64 of 2004. The court determined that this amounted to an abuse of the court process. The appellant's argument that the application was premature was rejected, as the duplicity was clear and uncontroverted. Consequently, the court allowed the respondent's application and struck out the present appeal, ordering the appellant to bear the costs of both the appeal and the application.
Court Disposition
appeal struck out as duplicative and abuse of process
Orders
- The appeal is struck out.
- The appellant shall bear the costs of the appeal and the application.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
CIVIL APPEAL NO. 362 OF 2005
(Being an appeal from the judgment in the original KilgorisSRMCC No. 641 of 2004 – Mr. Wilson Kaberia, RM)
BETWEEN
SOUTH NYANZA SUGAR CO. LTD................................................................................................................APPELLANT
VERSUS
SAMSON OMENGE MOSETI ......................................................................................................................RESPONDENT
RULING
The respondent’s application dated 15th January 2010 seeks striking out of this appeal for being a duplicity of Kisii HCCA No. 341 of 2005, South Nyanza Sugar Co. Ltd. –vs- Samson Omenge Moseti which the appellant had filed earlier. The respondent’s application was supported by an affidavit sworn by Don Z. Ogweno, the respondent’s advocate, to which is annexed a copy of the memorandum of appeal in respect of HCCA No. 341 of 2005.
I have perused the two appeals and it is evident that they all arise fromKilgoris RMCC No. 64 of 2004, Samson Omenge Moseti –vs- South Nyanza Sugar Company Ltd.The two appeals are identical in every respect.
Although the appellant’s advocate, Patrick J.O. Otieno, stated in his replying affidavit that the application was premature since directions had not been taken, given that the appellant filed two separate but identical appeals, the applicant’s contention that the second appeal is an abuse of the court process is insurmountable. Consequently, I allow the respondent’s application and hereby strike out this appeal. The appellant shall bear the costs of the appeal as well as of the application aforesaid.
DATED, SIGNED AND DELIVERED AT KISII THIS 30TH DAY OF SEPTEMBER, 2010.
D. MUSINGA
JUDGE.
30/9/2010
Before D. Musinga, J.
Mobisa – cc
Mrs. Adoyo for the Appellant
Mr. Ogweno for the Respondent
Court: Ruling delivered on 30th September 2010 in open court.
D. MUSINGA
JUDGE.