RAMOKIA HOUSING COOPERATIVE SOCIETY LTD v GEORGE KURIA MWAURA, KIMANI KAHUHU & ARTHER K. WAWERU, ANTONY K. NJUGUNA AND SAMWEL M. MUNGAI [2010] KEHC 652 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

LAND AND ENVIRONMENTAL LAW DIVISION

CIVIL SUIT (ELC) NO.339 OF 2010

RAMOKIA HOUSING COOPERATIVESOCIETY LTD....................................................................PLAINTIFF

VERSUS

GEORGE KURIA MWAURA.....................................................................................................1ST DEFENDANT

KIMANI KAHUHU.....................................................................................................................2ND DEFENDANT

ARTHER K. WAWERU, ANTONY K.

NJUGUNA AND SAMWEL M. MUNGAI

(as Trustees Of Mt Hebron Self Help Group)...................................................................3RD DEFENDANT

R U L I N G

1. By a chamber summons dated 11th October, 2010, the applicant Ramokia Housing Cooperative Society Ltd, seeks orders of interlocutory injunction, under Order XXXIX Rules 1, 2 and 3 of the Civil Procedure Rules, and Section 3A of the Civil Procedure Act.  The respondents have raised a preliminary objection to the hearing of the application. As per the notice of the preliminary objection filed by the respondents on 26th October, 2010, the grounds raised are as follows:

(i)That the 3rd defendant/respondent was enjoined in the suit without formal leave of the honourable court as per practice and law required under the Civil Procedure rules which have offended the provisions therein.

(ii)That the said chamber summons and the entire suit as a whole is fatally and incurably defective as the injunctive orders sought are incapable of being granted reason being that it offends the provisions of Order XXXIX Rules 1, 2 and 3 of the Civil Procedure Rules.

(iii)That the plaintiff/applicant has filed a multiple of same applications similar in nature seeking same orders which is contrary to laid down practice and jurisprudence.

(iv)That the aforesaid application and the entire suit as a whole raises no cause of action against the 1st, 2nd and 3rd defendants/respondents.

(v)That there is a misjoinder of adding the 3rd defendant/respondent as party to this suit.

(vi)That the plaintiff/respondent lacks locus standi and/or capacity to sue the 3rd defendant/respondent.

(vii)That the injunctive orders sought against the 1st, 2nd and 3rd defendants/respondents have been overtaken by events as the suit property has already been transferred to a third party.

(viii)That the plaintiff/applicant is infringing on the Constitutional rights of the 1st, 2nd and 3rd defendants by failing to serve upon summons to enter appearance as per order IV of the Civil Procedure Rules to enable filing of defences. The tenets of natural justice dictate that one cannot be condemned unheard.

(ix)That the aforesaid chamber summons and the entire suit as a whole is vexatious, frivolous and an abuse of the court process.

2. Counsel for the respondents has argued that the 3rd respondent was not properly enjoined in the suit as no leave was obtained from the court. It is further contended that the orders sought are incapable of being granted because neither the 1st, nor the 2nd, or the 3rd respondents are in control of the suit premises. It is maintained that the orders sought have been overtaken by events as the 3rd respondent bought the suit premises. It is submitted that the application before the court is vexatious, and should be dismissed.

3. In response to the preliminary objection, counsel for the applicant maintains that the 3rd respondent has been properly enjoined in the suit, as the pleadings have not been closed. It is submitted that the 1st and 2nd respondents having transferred the suit premises to the 3rd respondent, the applicant’s suit is properly before the court. It was argued that the interim orders sought are necessary as the suit property can change hands unless the order sought is given. It was pointed out that the 1st application filed by the applicant was abandoned.

4. I have given due consideration to this application. I have also perused the court record. The applicant filed this suit against the 1st and 2nd respondents on 14th July, 2010. Filed simultaneously with the suit was an application for interlocutory injunction under Order XXXIX of the Civil Procedure Rules.  On 14th July, 2010, the application was certified urgent and the applicant ordered to serve the application for inter parte hearing. On 19th July, 2010 a consent order was recorded for the status quo to be maintained. The respondents was given fourteen days within which to file a replying affidavit. The application was adjourned to 29th September, 2010 for hearing.  On 3rd August, the 1st respondent filed a replying affidavit. Following the filing of the replying affidavit, the applicant filed an amended plaint on 23rd September, 2010 in which he included other parties. These were, Arthur K. Waweru, Anthony K. Njuguna and Samuel M. Mungai as Trustees of Mt. Hebron Self Help Group, who were brought in as 3rd defendants. On 12th October, 2010, the applicant filed the chamber summons dated 11th October, 2010 which is subject of the preliminary objection.

5. It is evident from the above that the chamber summons filed on 14th July, 2010, which seeks similar orders as the current application, still remains on record. Although the applicant’s counsel submitted that the application was abandoned, there is nothing on record to confirm that allegation. In the circumstances, the current application is an abuse of the process of the court. As regards the joining of the 3rd defendants to the suit, it is evident that the same was done without leave of the court. Nevertheless, pleadings had not been closed and the applicant was entitled to amend the plaint without leave of the court. I would therefore overrule the preliminary objection on that ground.

6. There are several issues which have been raised. Such issues include, locus standi of the applicant, the cause of action against the respondents, and the allegation that the application before the court has been overtaken by events as the suit property has already been transferred to a 3rd party. All these issues are issues which cannot be determined on the pleadings. They are contentious issues which require evidence. They are not therefore issues that can be dealt with by way of preliminary objection.

7. The upshot of the above is that I will only uphold the preliminary objection on one ground. That is that there is another application pending before this court which raises the same issues as the current application. For that reason, the preliminary objection is upheld and the chamber summons dated 11th October, 2010, is struck out.

Those shall be the orders of this court.

Dated and delivered this 6th day of December, 2010

H. M. OKWENGU

JUDGE

In the presence of: -

Advocate for the plaintiff/applicant absent

Representatives of applicant present

Langat for the defendants/respondents

B. Kosei - Court clerk