BENARD ONYAMBU NYASETIA v ROBERT AGENGA OMBORI & JANE MOSAISI ONDICHO [2004] KEHC 318 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA OF KISII CIVIL CASE 157 OF 2000

BENARD ONYAMBU NYASETIA ………….......……………………….. PLAINTIFF

VERSUS

1. ROBERT AGENGA OMBORI   ) ………………………………. DEFENDANTS.

2. JANE MOSAISI ONDICHO     )

RULING

Counsel for the defendant pointed out that there is a similar suit being KISII CM CC.NO.240 of 2000 where the land in dispute is the same as in this case.  The plaintiff in this case is the defendant in the lower court case and the defendant is the plaintiff.

It was submitted that that case was filed earlier than this and in accordance to provisions of S.6 CPA. that other case should be disposed off first.

Mr. Masese submitted that the other case is in the lower court and therefore it cannot bar this court from proceeding with this case.

I do concur with Mr. Masese that a suit in the lower court cannot be used to stop hearing in the High Court.  However the situation in this case is a bit different.

KISII CM CC.NO.240 OF 2000 was initially filed as KISII HCCC.NO.224 OF 1998.  However on 10/4/2000 the suit was transferred to the lower court by consent of the parties.  The suit was therefore initially in the High Court.  Parties agree agreed it be transferred to the lower court.  However on 22/12/2000 the plaintiff filed this suit while knowing very well that the other suit is pending.  Essentially the dispute in the two cases is ownership of the same piece of land.  I therefore feel that though the other suit is before a lower court it should first be heard and determined.  I only urge the parties to facilitate speedy disposal of that suit.

This suit will therefore be stayed until that other suit is finalized.

KABURU BAUNI

JUDGE

17/11/04

Mr. Masese for plaintiff.

N/A for Respondent