[2022] KEHC 1962 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

(Coram: Odunga, J)

CIVIL SUIT NO. 18 OF 2019

YES HOUSING CO-OPERATIVE SOCIETY LIMITED................PLAINTIFF

-VERSUS-

KENNETH ONSARE MAINA....................................................... DEFENDANT

RULING

1. On 28th April, 2020, this Court found that the defendant was entitled to have the dispute with the plaintiff determined by arbitration pursuant to the said clause 15 of the Agreement and directed that all further proceedings in this case be hereby stayed and the dispute herein be referred to Arbitration. The parties were directed to agree on a single arbitrator to determine the dispute between themselves within thirty (30) days and upon failure to do so the arbitrator would be appointed by the Chairman for the time being of the Chartered Institute of Arbitrators Kenya Chapter upon the application of either party. The dispute, it was ordered would be determined by arbitration within sixty (60) days from the date of appointment of the said arbitrator.

2. The said orders arose from an application by the Defendant dated 17th June, 2019 in which he sought orders that pending the hearing and determination of the Application, there be a stay all further proceedings and that the proceedings herein be referred to Arbitration.

3. By an application dated 23rd March, 2021, the Defendant/Applicant has now moved this court seeking a stay of the said arbitral proceedings pending the hearing and determination of Nairobi Civil Appeal No. E095 of 2021.

4. The first issue for determination is whether a party who has invoked the jurisdiction of the court seeking certain orders can properly seek to stay the same orders once granted to him.

5. In Mitchell and Others vs. Director of Public Prosecutions and Another (1987) LRC (const) 128,it was held that:

“….in civilized society legal process is the machinery used in the courts of law to vindicate a man’s rights or to enforce his duties. It can be used properly, it can be used improperly, and so abused. An instance of this is where it is diverted from its proper purpose, and is used with some ulterior motive, for some collateral one or to gain some collateral advantage, which the law does not recognize as legitimate use of that process. But the circumstance in which abuse of process can arise are varied and incapable of exhaustive listing. Sometimes it can be shown by the very steps taken and sometimes extrinsic evidence only. But if and when it is shown it happened, it would be wrong to allow the misuse of that process to continue. Rules of court may and usually do provide for its frustration in some instance. Others attract the res judicata rule. But apart from and independent of these there is the inherent jurisdiction of every court of justice to prevent an abuse of its process and its duty to intervene and stop proceedings, or put an end to it. This inherent power has been used time and again to put a summary end to a process which seeks to raise and have determined an issue which has been decided against the party issuing it in earlier proceedings between the parties.”

6. In dealing with the issue of abuse of the process of the Court Kimaru, J in Stephen Somek Takwenyi & Another vs. David Mbuthia Githare & 2 Others Nairobi (Milimani) HCCC No. 363 of 2009 expressed himself as follows:

“This is a power inherent in the court, but one which should only be used in cases which bring conviction to the mind of the court that it has been deceived. The court has an inherent jurisdiction to preserve the integrity of the judicial process. When the matter is expressed in negative tenor it is said that there is inherent power to prevent abuse of the process of the court. In the civilised legal process it is the machinery used in the courts of law to vindicate a man’s rights or to enforce his duties. It can be used properly but can also be used improperly, and so abused. An instance of this is when it is diverted from its proper purpose, and is used with some ulterior motive for some collateral one or to gain some collateral advantage, which the law does not recognise as a legitimate use of the process. But the circumstances in which abuse of the process can arise are varied and incapable of exhaustive listing. Sometimes it can be shown by the very steps taken and sometimes on the extrinsic evidence only. But if and when it is shown to have happened, it would be wrong to allow the misuse of that process to continue. Rules of court may and usually do provide for its frustration in some instances. Others attract res judicata rule. But apart from and independent of these there is the inherent jurisdiction of every court of justice to prevent an abuse of its process and its duty to intervene and stop the proceedings, or put an end to it.”

7. Similarly, Kimaru, J in Rev. Madara Evans Okanga Dondo vs. Housing Finance Company of Kenya Nakuru Hccc No. 262 of 2005 held:

“The court will always invoke its inherent jurisdiction to prevent the abuse of the due process of the court. The jurisdiction of the court, which is comprised within the term “inherent”, is that which enables it to fulfil itself, properly and effectively, as a court of law. The overriding feature of the inherent jurisdiction of the court is that it is part of procedural law, both civil and criminal, and not part of the substantive law; it is exercisable by summary process, without plenary trial, it may be invoked not only in relation to the parties in pending proceedings, but in relation to anyone, whether a party or not, and in relation to matters not raised in litigation between the parties; it must be distinguished from the exercise of judicial discretion; it may be exercised even in circumstances governed by rules of the court. The inherent jurisdiction of the court enables the court to exercise control over process by regulating its proceedings, by preventing the abuse of the process and by compelling the observance of the process. In sum, it may be said that the inherent jurisdiction of the court is virile and viable doctrine and has been defined as being the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them.”

8. It was the ex parte applicant’s position that the 2nd Respondent has clearly engaged in egregious forum shopping and relied on Satya Bhama Gandhi vs. Director of Public Prosecutions & 3 others [2018] eKLR, where the court pronounced itself as follows:

“23. The situation that may give rise to an abuse of court process are indeed in exhaustive, it involves situations where the process of court has not been or resorted to fairly, properly, honestly to the detriment of the other party. However, abuse of court process in addition to the above arises in the following situations:-

(a)Instituting a multiplicity of actions on the same subject matter, against the same opponent, on the same issues or multiplicity of actions on the same matter between the same parties even where there exists a right to begin the action.

(b)Instituting different actions between the same parties simultaneously in different court even though on different grounds.

(c)Where two similar processes are used in respect of the exercise of the same right for example a cross appeal and respondent notice.

(d)Where an application for adjournment is sought by a party to an action to bring another application to court for leave to raise issue of fact already decided by court below.

(e)Where there no iota of law supporting a court process or where it is premised on recklessness. The abuse in this instance lies in the inconvenience and inequalities involved in the aims and purposes of the action.[13]

(f)Where a party has adopted the system of forum-shopping in the enforcement of a conceived right.

(g)Where an appellant files an application at the trial court in respect of a matter which is already subject of an earlier application by the respondent at the Court of Appeal.

(h)Where two actions are commenced, the second asking for a relief which may have been obtained in the first. An abuse may also involve some bias, malice or desire to misuse or pervert the course of justice or judicial process to the irritation or annoyance of an opponent.”

9. In this case the Applicant sought orders staying these proceedings and referring them to arbitration. Having obtained the orders it sought, it is now back before this Court alleging that the same orders which were favourable to him have aggrieved him. While he may be within his rights to appeal against a decision favourable to him, certainly, he cannot troop back to this Court seeking stay of the arbitral proceedings. That conduct clearly amounts to an abuse of this Court’s process and cannot be countenanced.

10. If this Court were to stay the order referring the matter to arbitration, the effect would be that not only the reference to arbitration would be stayed but the order staying the proceedings in this suit pending those arbitral proceedings would stand vacated since there would then be no order staying proceedings in this suit. I do not see what benefit the Applicant stands to gain in that event.

11. In the premises, the order that commends itself to me and which I hereby grant is that the application dated 23rd March, 2021 is wholly misconceived and incompetent and is hereby struck out with costs.

12. It is so ordered.

RULING READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 3RD DAY OF MARCH, 2022.

G V ODUNGA

JUDGE

Delivered in the presence of:

Mr Muli for the Respondent/Plaintiff

CA Susan