Monarch Insurance Company Limited v Millicent Anyango Ochieng,Silivester Mbaka & another [2020] KEHC 8015 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

(CORAM: CHERERE-J)

CIVIL APPEAL NO.12 OF 2018

BETWEEN

THE MONARCH INSURANCE COMPANY LIMITED................APPELLANT

AND

MILLICENT ANYANGO OCHIENG...........................................RESPONDENT

AND

SILIVESTER MBAKA..............................................................1ST DEFENDANT

RANA AUTOSELECTION LTD.............................................2ND DEFENDANT

(Being an Appeal from the Ruling and Order in Kisumu CMCC No. 553 of 2015 by Hon. H.Adika (SRM) on 19th September, 2016)

JUDGMENT

Introduction

1.  On 19th September, 2016, the Appellant’s application dated 21st July, 2016 seeking orders to stay the proceedings and to be enjoined as an interested party was dismissed for want of attendance by Appellant’s counsel.

2.  The Appellant faults the learned trial magistrate for failing to consider the application on merit.

3. I have considered this appeal CIVIL APPEAL NO.12 OF 2018 which arose from CMCC No. 553 of 2015 LYDIA ACHIENG ODHIAMBO V SYLVESTER MBAKA & RANA AUTOSELECTION LTD and I have discovered that it is between the same parties and on the same issues as CIVIL APPEAL NO.11 OF 2018 which arose CMCC No. 552 of 2015 LYDIA ACHIENG ODHIAMBO V SYLVESTER MBAKA & RANA AUTO SELECTION LTD.

4. The two appeals and the two lower court matters are no doubt duplicates of each other.

5. The examples of abuse of court process are inexhaustible and involve situations where the process of court has not been resorted to fairly, properly and honestly to the detriment of the other party such as instituting a multiplicity of actions on the same subject matter, against the same opponent as is the case in CIVIL APPEAL NO.12 OF 2018 and CMCC No. 553 of 2015 LYDIA ACHIENG ODHIAMBO V SYLVESTER MBAKA & RANA AUTOSELECTION LTD.

Disposition

6.  From the foregoing analysis, I have come to the conclusion that this appeal and Kisumu CMCC No. 553 of 2015 are an abuse of the court process.

7.  Consequently, it is hereby ordered that:

1)This appeal be and is struck out.

2)The Appellant is condemned to pay costs to the Respondent

DATED AND DATED IN KISUMU THIS……27th…...DAY OF…..February….2020

T. W. CHERERE

JUDGE

Read in open court in the presence of-

Court Assistant  - Amondi/Okodoi

For the Appellant  -  Mr Bagada hb for Mr.Cheruiyot

For the Respondent- N/A