Patrick Mwangi Kaburu v Shreenji Enterprises Ltd & another [2013] KEHC 6121 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL DIVISION

CIVIL CASE NO. 37 OF 2009

PATRICK MWANGIKABURU...............................………….PLAINTIFF

VERSUS

1 . SHREENJI ENTERPRISES LTD

2. EAST AFRICAN DEVELOPMMENT BANK LTD...........DEFENDANTS

R U L I N G

1.     The Plaintiff’s notice of motion dated 6th February 2013 is brought under sections 1A, 1B & 3A of the Civil Procedure Act (the Act) and Order 38of the Civil Procedure Rules (the Rules) It seeks the main orders –

That Machakos CMCC No. 667 of 2008 be heard as a test suit to determine the issue of liability.

That pending hearing and determination of the said Machakos CMCC No. 667 of 2008, proceedings in this present suit be stayed.

2.     The application is premised on the grounds that -

The defendants are the same in this and in the Machakos case.

There have been previous attempts to bring the two cases together but none has been of the nature of the current application.

This court has the judicial discretion and jurisdiction to grant the prayers sought.

The application is supported by the affidavit of P.W. Kariuki the Plaintiff's counsel sworn on 6th February 2013.

3.     The Defendants have opposed the application in their grounds of opposition dated 15th March 2013.   The main point taken is that it would not be desirable for a lower court case to be a test case when the same issue is before the High Court.

4.     I respectfully agree with the sentiments expressed by the Defendants in this application.  If the Machakos case which is pending before the lower court is selected as a test suit, the losing party in any judgment delivered by that court will have a right of appeal to this court.  So, the issue of liability will have been thrown back to this court.  In that event, where is the expediency?  Would it not be more sensible and expedient that the present suit pending before this court be selected as the test suit?

5.     It appears from the submissions of learned counsel for the Plaintiff that the present application was made merely because the Plaintiff anticipates some difficulties in prosecuting his case.  That cannot be a proper basis for selecting a test suit.

5.     This application is entirely without merit.  It is dismissed with costs to the Defendants.  It is so ordered.

DATED AND SIGNED AT NAIROBI THIS 4TH DAY OF JUNE 2013

H.P.G. WAWERU

JUDGE

DELIVERED AT NAIROBI THIS    7TH DAY OF JUNE 2013