Attorney General & Busia Dairy Co – op Society Ltd.- v James Ndirangu Ng’ang’a [2014] KEHC 6227 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

ENVIRONMENT  LAND CASE NO. 31 OF 2012.

ATTORNEY GENERAL…………………….1ST PLAINTIFF/RESPONDENT

BUSIA DAIRY  CO – OP  SOCIETY LTD.- 2ND PLAINTIFF/RESPONDENT

=VERSUS=

JAMES NDIRANGU NG’ANG’A ………………DEFENDANT/APPLICANT.

R U L I N G.

JAMES NDIRANGU NG’ANG’A, the Defendant and hereinafter referred to as the Applicant filed the Notice of Motion  dated 19. 09. 2013 for the following orders;

‘’  a)  That the plaint filed herein  be and is hereby  struck out.

b)  The costs of this application and costs of the suit be provided for.’’

The application is based on the ground that the suit is an abuse  of the process of the court. The  application is  supported by the affidavit  of the Applicant sworn on 19. 9.2013 in which  he depones to the following, among  others:

That he  is the registered proprietor of Busia Township/20 and has  been paying the rates for the plot.

That he  filed Busia  PMCC. No. 229 of 2007 seeking  vacant possession of the plot against Busia Dairy Farmers Co operative  Society and got orders in his favour.

That Busia Dairy Farmers Co operative Society  filed an appeal being Busia H.C.C.A No. 27 of 2008 which is still pending and that the filing of the plaint herein is an abuse of the court’s  process.

The  heading of the application dated 19. 09. 2013  has only two parties, being  the Attorney General as the plaintiff,  and the Applicant herein as the Defendant. The Attorney General is therefore the Respondent in this application and will hereinafter he referred as such.

The respondent opposes the application and filed a replying affidavit sworn by  E.M.Wafula  on 9. 10. 2013 in which  be among others depones as follows:

That the suit is not an abuse of the court’s process, and is not res judicata as the parties are different to those in Busia  PMCC. No. 229 of 2007.

That the Respondent seeks to cancel lease issued to the Applicant for having been fraudulently obtained.

The Applicant filed a supplementary affidavit sworn on 23. 10. 2013 in which he among others, state that Busia Dairy Farmers Co operative Society was on 9th July, 2013 made a party in this suit.

Mr. Otanga and Mr. Onyiso advocates made verbal submission for the Applicant and Respondent respectively.  Busia Dairy Farmers Co operative Society had on 9. 7.2013 been enjoined as the 2nd  Plaintiff following their application through J.V. Juma & company Advocates dated 6. 6.2013. The current application was served on their advocate as  confirmed  through the affidavit  of service of Richard Okello Mudibo  sworn on 4. 10. 2013, but did not file any replying papers. A perusal of the record also shows that they are yet to comply with the order of 9. 7.2013 to file and serve their papers in 21 days.

Having considered the submissions by counsel, the supporting, supplementary and replying affidavits, the court finds as follows:

That the Applicant had earlier, through his then counsel filed a notice of preliminary objection dated 8. 1.2013 seeking to have the suit dismissed with costs on the ground that the matter was res judicata and an abuse of courts process among other grounds. The  preliminary objection was heard together with an application  by the Respondent dated 11. 12. 2012  on 21. 01. 2013  and a ruling  dated 18. 02. 2013  delivered  inter alia rejecting the preliminary objection and making a finding that the Respondent had the locus standi to initiate this case. The court’s ruling of 18. 02. 2013 is yet to be reviewed and or successfully appealed against. The application dated 19. 9.2013 seeks to attain what the preliminary objection had aimed to get, and  that is dismissal and or striking out of  the plaint with costs. This issue has already been dealt with by this court which pronounced it’s position through its ruling of 18. 2.2013. The  Applicant’s current counsel appear not to have been aware of their predecessor’s preliminary  objection and the court orders thereon. The application dated 19. 09. 2013 is therefore an abuse of the courts  process as it raises the same issues  the court has already  made pronouncement on.

That the Respondent was not a party in Busia PMCC. No.229 of 2007 and is also not a party in Busia HCCA No.27 of 2008 Busia Dairy Farmers  Co-operative Society who are parties in the two aforementioned  matters were enjoined  as 2nd plaintiff in this case on 9. 7.2013 but are yet to file any pleadings.

That for reasons  in 1 and 2  above the decisions in the Court of Appeal  cases of Nishith Togendra Patel –VS-  Pascale Miregille Baksh & Anor Nairobi  C.A.App No. 264 of 2007 and Machanga Investments Ltd., -V- Safaris Vulimited (Africa) Ltd &  2 others, Nairobi C.A.C. A No.25 of 2002 are not  relevant.

For  reasons  set out above the application dated  19. 09. 2013  is without merit and is  dismissed with costs.

S.M. KIBUNJA,

JUDGE.

Dated, and delivered on 12th of  March, 2014.

In the presence of…Mr. Onyiso for 1st Plaintiff  and Mr. Otanga for defendant.

S.M. KIBUNJA,

JUDGE.