[2018] KEHC 1740 (KLR)
The court found that the previous suit between the parties had been struck out before any evidence was adduced and not dismissed after a hearing on the merits. The omission to disclose the previous suit in the plaint was not fatal and could be remedied by amendment. The appellant failed to demonstrate any prejudice...
Source-derived case information.
- Citation
- [2018] KEHC 1740 (KLR)
- Parties
- Appellant: W.E. Tilley (M) Limited; Respondent: Peter Njuguna Mwangi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 213 of 2016
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Striking Out of Pleadings, Abuse of Court Process, Previous Suit Non Disclosure, Limitation of Actions, Res Judicata, Employment Injury Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
W.E. Tilley (M) Limited
Appellant
Peter Njuguna Mwangi
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the plaint should be struck out for being verified by a false affidavit and for non-disclosure of a previous suit.
- 2 Whether the existence and non-disclosure of a previous suit that was struck out renders the current suit scandalous, frivolous, or vexatious.
- 3 Whether the appellant suffered any prejudice by the respondent's failure to disclose the previous suit.
Ratio Decidendi
The court found that the previous suit between the parties had been struck out before any evidence was adduced and not dismissed after a hearing on the merits. The omission to disclose the previous suit in the plaint was not fatal and could be remedied by amendment. The appellant failed to demonstrate any prejudice that would result from the current suit proceeding to hearing. The court emphasized that the declaration regarding previous proceedings is intended to prevent double jeopardy, which was not at issue in this case. The appellant had not disputed the court's jurisdiction in its defence. Accordingly, the appeal lacked merit and was dismissed, affirming the lower court's decision to...
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with costs to the respondent.
- The lower court file shall be returned to the Chief Magistrate’s court for hearing and determination.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 213 OF 2016
W.E. TILLEY (M) LIMITED ………………………………..APPELLANT
VERSUS
PETER NJUGUNA MWANGI …………………………..RESPONDENT
(Being an appeal from the ruling of Hon. M. Wachira (SPM) in Milimani CMCC No.3077 of 2015 delivered on 1st April 2016)
JUDGMENT
The respondent herein filed a suit against the appellant in the lower court claiming damages for injuries sustained while he was in the employment of the appellant. The appellant denied the respondent’s claim. Following the close of pleadings the appellant filed an application by way of Notice of Motion dated 29th October and filed on 5th November, 2015 seeking to strike out the plaintiff’s suit with costs.
The grounds upon which that order was sought were that the plaint had been verified by a false affidavit, and was therefore scandalous, frivolous and vexatious. It was alleged that this was an abuse of the court process.
The application was opposed and there was a replying affidavit sworn by the respondent. In a ruling delivered on 1st April, 2016 the appellant’s application was dismissed and the court declined to strike out the plaint. The appellant was aggrieved by that ruling and lodged this appeal.
Both parties have made submissions herein which I have noted. The only reason the appellant moved the court for the striking out of the appellant’s suit was that there was a previous suit No. CMCC 1701 of 2010 which had been struck out by the court because it was filed out of time. However, when the second suit was filed the respondent did not disclose this in his pleadings. Instead he stated in paragraph 8 of the plaint that there was no other pending suit nor any other previous proceedings between the plaintiff and the defendant relating to that cause of action.
The respondent conceded there was a previous suit which however had been struck out. It is not in dispute that the previous suit had been struck out before a hearing. It was not struck out after the parties had adduced any evidence. There is a difference between striking out a suit and dismissing the suit. A suit may be stuck out for lack of jurisdiction, or on the basis of res judicata under Section 7 of the Civil Procedure Act or under the Limitation of Actions Act among other grounds. Invariably in all such cases, this step is taken before any evidence is adduced in the prosecution of the case. On the other hand, dismissal of a case follows the calling of evidence which may not be sufficient to prove the case.
That being the case, what was required to be amended was the paragraph 8 of the plaint and not the affidavit as such. Further, the appellant has not disclosed what prejudice if any, shall be visited upon it if the present suit is heard on merit. The respondent sought and obtained leave to file the second suit.
The declaration in a plaint whether or not there has been previous proceedings relating to the same cause of action, and between the same parties, is intended to avoid double jeopardy which is not the case in the present suit. I am fortified in that observation by the fact that the appellant in its defence clearly stated the jurisdiction of the court was not disputed. It is ironic therefore, to turn around and state that the suit is bad in law.
Going by the provisions of law cited and the authorities relied upon by the parties, I do not see any merit in this appeal. I order that the same should be, and is hereby dismissed with costs to the respondent. The lower court file shall be returned to the Chief Magistrate’s court for hearing and determination.
Dated, signed and delivered at Nairobi this 4th day of December, 2018.
A. MBOGHOLI MSAGHA
JUDGE