Horace Awori v Dickson Minya Amukowa & 12 others [2015] KEHC 3000 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA,

ELC. NO. 124 OF 2013. (FORMERLY HCC. 49 OF 2012)

HORACE AWORI …………………………………...………….. PLAINTIFF

VERSUS

DICKSON MINYA AMUKOWA & 12 OTHERS………….. DEFENDANTS.

R U L I N G.

The Defendants through M/S. Ario  & co. Advocates filed the Notice of Motion dated 27. 11. 2013 for orders that;

‘’  1. …………………

2. That the defence respectively requests for stay of proceedings  on the basis of abuse of the process.

3. That in the alternative, the defence requests for an order for   the Plaintiff to take stand and be cross-examined on basis  of  the context  and contents  the agreement of sale dated 6th May,  2013 to determine the issue of abuse of this court process.’’

The application sets out two grounds on its face being;

‘’     1. That the Plaintiff in collaboration with the 2nd Defendant herein and another person have been reaching out to  Defendants and people  known to be likely Defendants  witnesses to change their testimony for a  reward.

2. That the promised reward is removal from the instant suit.’’

The application is supported by the two affidavits by Dickson Amukowa  Minya and Nicholas Oduori Odeko, sworn on 9th September, 2013.

The Plaintiff opposed the application through the grounds of opposition filed through his advocates M/S.  Balongo & co. Advocates dated 10th December, 2013 which sets out the following four grounds:

‘’  1.  The application is an abuse of  the process of the court.

2.  The orders if granted shall contravene the Constitution.

3.  The orders are opaque ambiguous and without substance.

4.  The application is berefit of substance.’’

During the hearing, Mr. Makokha and Mr. Jumba advocates made their submissions for and against the application on behalf of the Defendants and Plaintiff respectively.

The  main contention by the Defendants is that  the filing of this suit was an abuse of  the  courts  process as the Plaintiff is using its existence  to put  pressure  on the Defendants to buy  the plots they occupy or pay for the plots again with a promise to have the suit against those complying  being withdrawn.  The Defendant have exhibited a copy of a sale agreement between Plaintiff and the 4th Defendant dated 6th May, 2013. The sale agreement was drawn and witnessed by M/S. Balongo & co. Advocates. One Lydia Saisi Pamba, who l take to be the spouse or a relative of the 4th Defendant, also witnessed it.

Having  considered  the grounds on the face of the application, the grounds of opposition, the two supporting affidavits and submissions by counsel, the court finds as follows;-

That  the Defendants aim, discernable from the application,  is to stay the proceedings  for what they  call the Plaintiff use of the  case to pressure them into paying for or buying afresh  their plots from him. That the Plaintiff’s conduct for example,  entering into a sale agreement  with 4th Defendant,  amount to abuse  of the courts process. Is this so?

That the  term ‘’abuse  of process’’ is defined in Black’s Law  Dictionary  9th Edition at page 11 as;

‘’ The improper and tortious use of a legitimately issued court process to obtain a result that is either unlawful or beyond the process’s scope.’’

That the Supreme  Court of Kenya, in the case of Kenya Section of the International Commission of Jurists –V- The Attorney General  and 2 others, Supreme Court Application No. 1 of 2012 considered the term  ‘’abuse  of process’ and held at page 36 that;

‘’   The concept of ‘’abuse of the process of the court.’’ bears no fixed meaning, but  has to do with the motives behind the guilty  party’sactions; and with a perceived attempt to maneuver the court’s  jurisdiction in a manner incompatible  with the goals  of justice’’

That taking  the meaning  of the phrase or term, ‘’abuse  of process of the court’’ as defined  in 2  and 3 above, the court is unable  to find any elements of  abuse  of court’s  process attributable  to the Plaintiff from the materials or facts presented.  This  is especially so as the 4th  Defendant  who entered into  the sale agreement  with  Plaintiff  dated 6th May, 2013  is not reported to have  been coerced or threatened  into entering into the agreement. Also  those Defendants  that  Plaintiff and or his agents may have offered to sell parcels  of Land parcel Bukhayo/Kisoko/1322 to are at  liberty  to decline  the offer without  fear of any  prejudice to their  rights in this case as their defence  is that they bought parcels from Bukhayo/Kisoko/1680.

That Article  159 (2) (d)  of the Constitution  obligates this court  to administer justice ‘’without undue regard to procedural technicalities.’’ The court is of the view that   to stay proceedings for purposes of allowing  the Defendants  to cross examine the Plaintiff in matters to do with  the sale agreements or offers of sale  he has allegedly made to the Defendant will only delay the finalization of this case. The parties could do better to assist this court dispose off the matter without any undue delay by focusing their efforts to the hearing of the substantive suit.  During the hearing, each side will have the opportunity to cross examine those offered as witnesses by the other side.

For reasons shown above, l find the Defendants’ application is without merit and is dismissed with costs.

S.M. KIBUNJA,

JUDGE.

DATED AND DELIVERED IN OPEN COURT ON …9TH………DAY OF APRIL, 2014.

IN THE PRESENCE OF;