REPUBLIC v S.C. MUTHEE, CHIEF BUILDING INSPECTOR, MUNICIPAL COUNCIL OFMOMBASA & ANOTHER EX-PARTE SALIM SAID KOI & 19 OTHERS [2012] KEHC 3127 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT

AT MOMBASA

Civil Miscellaneous Application 345 of 2009

IN THE MATTER OF CRIMINAL CASE NO. (M). 3004 OF 2009 (MUNICIPAL COURT)

AND

IN THE MATTER OF AN APPLICATION FOR LEAVE TO FILE AN APPLICATION FOR JUDICIAL REVIEW ORDERS OF PROHIBITION AND CERTIORARI

BETWEEN

REPUBLIC ……………………………..………………………………………. APPLICANT

AND

1. S.C. MUTHEE, CHIEF BUILDING INSPECTOR, MUNICIPAL COUNCIL OFMOMBASA

2. HON. M.K. MWANGI (S.R.M.) – MUNICIPAL COURT …......................… RESPONDENTS

AND

1. MOHAMED HATIMY

2. HATIMY GROUP LIMITED …......................……………………… INTERESTED PARTIES

EX-PARTE APPLICANTS

1. SALIM SAID KOI

2. DZOMBO MWAGAMBO

3. ATHMAN HASSAN MGANGA

4. KAINGU SANGA

5. SAFARI KAHINDI

6. MARGARET M. MUTUGI

7. ABDULRAHMAN AMIGO

8. HAMADI KO

9. DONDO MUKALA ALIAS TOLLE ABAA

10. SEIF MOZA

11. SAFARI MANZI

12. SAID MUSA

13. ADAM ABAAS SWALEH

14. HASSAN MOHAMED NASSER

15. HAFSWA ABDILLAHI

16. ROBERT OMWENGA

17. DAVID J.O. OTIENO

18. GEORGE MWANDENGE

19. PHILIP ASIYO

20. NASSIR KABAYA

RULING

Before court is the Ex-parte applicant’s Notice of Motion dated 24th august 2009 seeking Judicial Review orders of –

“1. PROHIBITION/INJUNCTION directed to the interested parties herein restraining them or whoever acting on their behalf from proceeding with Criminal Case No. (M) 3004 of 2009, MUNICIPAL PROSECUTOR –VS- MOHAMED HATIMY and HATIMY GROUP LIMITED, and/or giving any further orders therein.

2)CERTIORARI directed to the 2nd Respondent to bring to the high Court to be quashed the 2nd Respondents Decision and/or Ruling and/or Judgement, ordering the interested parties and the 1st Respondent to demolish all structures on Plot Nos. 203/1/MN, 204/1/MN, 222/1/MN and 967/1/MN Bamburi.

3)That costs of this application be provided for”

The application was supported by the supporting affidavit of SALIM SAID KIO. MR. KENGA Advocate acted for the Ex-Parte Applicants, MR. KHATIB represented the Interested Parties whilst MR. ONSERIO represented the Honourable Attorney General. It was agreed by consent that the application be disposed of by way of written submissions and by 4th June 2012 all parties had duly filed their written submissions.

The subject matter of this application are the properties on Plot Nos. 203, 204, 221 and 967 Mainland North Bamburi (hereinafter referred to as the ‘suit property’). I have carefully considered the submissions made by counsel. It has come to my attention that there are two (2) other High Court suits pending in the High Court in Mombasa involving the same suit property and the same parties. These are HCCC 69 of 2007, HATIMY GROUP –VS- DZOMBO MWAGAMBO and 3 OTHERS and HCCC (OS) No. 76 of 2007 SALIM SAID KOI –VS- HATIMY GROUP. Certain pertinent orders have already been issued by the High Court in respect of the two pending suits. I am concerned that with full knowledge of the existence of the High Court suits the ex-parte Applicants have proceeded to file this present application to be heard by yet a third high Court Judge. This means that due to the several suits pending over the same subject matter there is likely to be issued conflicting decisions in each suit. This is not desirable at all. The parties must desist from engaging the courts in this type of merry-go-round. Filing of additional causes when suits are still pending over the same subject matter must be discouraged. I am mindful of Section 6 of the Civil Procedure Act which provides:

“No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties or between parties under whom they are any of them claim litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed”

There exist already two High court suits filed before this application was filed. In order to preserve the dignity of the courts and in order to avoid possible conflicting decisions by courts of concurrent jurisdiction I decline to rule on this matter at this stage as I feel it would better serve the interests of justice to have the two earlier suits determined first.

Dated and Delivered in Mombasa this 11th day of July 2012.

M. ODERO

JUDGE

In the presence of:

Mr. Were holding brief for Mr. Kibara for 1st Respondent

Mr. Hamza holding brief for Mr. Khatib and Mr. Kenga