[2020] KEHC 5633 (KLR)
The court found that the plaintiffs/respondents had engaged in an abuse of the court process by filing multiple suits and applications over the same subject matter without disclosing the existence of previous and pending cases. The plaintiffs' advocates failed in their duty of candor to the court, and the verifying...
Source-derived case information.
- Citation
- [2020] KEHC 5633 (KLR)
- Parties
- Plaintiff: Studertek Power System (E.A); Plaintiff: Richard Gakime Mburu; Respondent: Housing Finance Company of Kenya
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 05 of 2020
- Procedural Posture
- Civil Case / Ruling on Interlocutory Applications and Preliminary Objection
- Outcome
- Plaintiffs' application dismissed; defendant's application allowed with costs to the applicant.
- Legal Topics
- Abuse of Court Process, Non Disclosure of Material Facts, Loan Restructuring, Injunctive Relief, Pecuniary Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Studertek Power System (E.A)
Plaintiff
Richard Gakime Mburu
Plaintiff
Housing Finance Company of Kenya
Respondent
Procedural Posture
Civil Case / Ruling on Interlocutory Applications and Preliminary Objection
Legal Issues
- 1 Whether the multiple suits and applications filed by the plaintiffs constitute an abuse of court process.
- 2 Whether the plaintiffs failed to disclose material facts regarding previous and pending suits over the same subject matter.
- 3 Whether the orders granted ex parte on 18th March 2020 should be set aside, varied, or vacated.
Ratio Decidendi
The court found that the plaintiffs/respondents had engaged in an abuse of the court process by filing multiple suits and applications over the same subject matter without disclosing the existence of previous and pending cases. The plaintiffs' advocates failed in their duty of candor to the court, and the verifying affidavit sworn by the plaintiffs falsely stated that there were no other suits pending or concluded between the parties, amounting to perjury. The court held that such conduct undermines the administration of justice and cannot be condoned. Consequently, the application dated 16th March 2020 was dismissed, and the defendant's application dated 16th April 2020 was allowed with...
Court Disposition
Plaintiffs' application dismissed; defendant's application allowed with costs to the applicant.
Orders
- The application dated 16th March 2020 is dismissed with costs to the applicant.
- The defendant's application dated 16th April 2020 is allowed with costs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
CIVIL CASE NO. 05 OF 2020
STUDERTEK POWER SYSTEM (E.A)....................................1st PLAINTIFF
RICHARD GAKIME MBURU.................................................2ND PLAINTIFF
VERSUS
HOUSING FINANCE COMPANY OF KENYA.......................RESPONDENT
RULING
1. The application dated 21st April 2020 was brought under a certificate of urgency pursuant to Section 1A,1B,3 ,3A and 7 of the Civil Procedure Act, Order 40 Rule 7 and Order 51 Rule 1 and 15 of the Civil Procedure Rules seeking orders to vary set aside and /or discharge and vacate orders made on 18th March 2020 pending interpartes hearing of the application herein and the Respondent’s application dated 16th March 2020.
2. The Applicant also sought that the application herein be considered alongside preliminary objection dated 16th April 2020 filed by the Applicant by way of written submissions.
3. The application is based on the grounds that that the Respondent intentionally and /or deliberately and/or knowingly failed to make full material disclosure as appertains the subject herein thereby denying the court an opportunity to make an overall factual assessment of the issues at hand when granting exparte orders of 18th March 2020.
4. The Applicant claimed that there have been other previous suits between the parties herein over the same subject matter namely;
a. Meru CMCC No.33 of 2019 which was struck out in a ruling delivered by Hon.L Ambasi (CM) for the reason that the trial court lacked pecuniary jurisdiction over the subject matter.
b. Meru HCCC No.6 of 2019 that had various applications filed by the Plaintiff/Respondent which were concluded in rulings delivered on 6th June 2019 where Justice Gikonyo held, “……. Nonetheless, purely in the interest of justice, and due to the peculiar situation herein, some interim relief is merited. I will therefore grant stay of sale of the charged property for only 90 days to enable the respondent to work out the monthly instalments payable after factoring in the penalties accruing from the default of the restructured loan. The respondent shall do so in 30 days and the 1st plaintiff shall make prompt payments thereof at the end of the month immediately following the rendering of the new instalments and thereafter at the end of each succeeding month until payment in full. Any default by the applicants in repayment of loan in accordance with this order will mean that the stay will lapse automatically. I am enjoined under the law and the Constitution to fashion relief which is appropriate in the circumstances of each case. It should be noted that I have made a finding that parties agreed to restructure the loan and therefore these orders are not re-writing the contract whatsoever. The application is allowed to the extent I have stated. Costs to the respondent. It is so ordered.”
In a ruling delivered in 14th November 2019 the court ordered the due process to sell the security to continue and should the debtor get a buyer who can buy and pay up the debt he can introduce him to the bank. That the court is not making an order as now due process of sale should take its course and that the matter is concluded. By another ruling dated 4th of December 2019 the application by the Respondent herein was dismissed for the reasons that he had not established a prima facie case for which an injunction may be granted.
5. This court made an order for this application to be served for interpartes hearing by way of written submission and that the Respondents were to be served for them to file their response and written submissions within 7 days .A perusal of the court record shows that on 28th April 2020 Martin Maheli Advocate served a copy of order, certificate of urgency, notice of preliminary objection and replying affidavit on the law firm of Mutegi Mugambi and Company Advocates who are acting for the Respondents herein but it appear that they have not responded to the application preliminary objection and the court is left to consider the application based on the supporting affidavit and the submissions of the Applicant.
6. In consideration of the multiple suits and applications filed by the Respondents/Plaintiffs herein I do find that the same are an abuse of the court process on the part of the Respondents as well as the advocates who failed to disclose to the court that there were other suits pending in respect to the same course of action and in fact went ahead to swear a verifying affidavit dated 16th March 2020 that there is no suit pending or concluded between the parties herein over the same subject matter in any court of law or tribunal. That in the view of this court is perjury under the Oaths and Statutory Declaration Act.
7. The application dated 16th March 2020 cannot be sustained in the circumstances and both are dismissed with cost to the Applicant. The Defendant’s application dated 16th April 2020 is allowed with costs.
HON.A. ONG’INJO
JUDGE
DATED AND DELIVERED AT NAIROBI VIA EMAIL THIS 28th . DAY OF MAY 2020 DUE TO THE PRESIDENTIAL DIRECTIVES ISSUED ON 15TH MARCH 2020 AND SUBSEQUENTLY ON 7TH APRIL 2020 DUE TO COVID-19 PANDEMIC.
HON.A. ONG’INJO
JUDGE