Roseline Wanjiru Machira v Speed Capital Limited [2017] KEHC 3536 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

COMMERCIAL & ADMIRALTY DIVISON

CIVIL SUIT. NO.482 OF 2016

ROSELINE WANJIRU MACHIRA……………….PLAINTIFF

VERSUS

SPEED CAPITAL LIMITED………....................DEFENDANT

RULING

1. It is an abuse of Court process for a Party to file a Suit against another who it already has a pending Suit in respect to an issue which is directly and substantially an issue in the two suits.  Infact Section 6 of The Civil Procedure Act bars the subsequent suit from proceeding as follows:-

“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 or 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”.

2. The Plaintiff herein admits fling Milimani CMCC No.4180 of 2016, (ROSELINE WANJIRU MACHIRA –VS- SPEED CAPITAL LIMITED) (hereafter the Lower Court suit) against the Defendant herein. The matters in issue in that suit are the same as those in this suit.  The Lower Court suit is the earlier in time having been filed on 28th June, 2016 while this was filed on 25th November 2016.

3. The Lower Court suit is pending todate.  As to why she did not pursue it is explained as follows:-

“THAT upon advertisement of my property for sale by public auction, I filed NAIROBI CMCC NO.4180 of 2016 together with an application seeking interim relief as well as seeking protection of the Honourable Court, which application and case was not deliberated upon because the Honourable Court opined that it was not seized of the requisite jurisdiction to arbitrate of the matter since it involves charged property hence I was not able to secure any protection from Court constraining me to approach the Honourable Court through his application”.

4. What this Court is not told is how the Lower Court lacks jurisdiction.  Secondly the alleged ‘opinion’ of the Lower Court is not shown to Court. Critically, as well, is that there is no reason given why the Plaintiff did not withdraw the said suit before mounting the current one.

5. Against this untidy background, the Plaintiff seeks an equitable intervention of this Court through the Notice of Motion dated 25th November 2016. It is an application for Temporary Injunction. The hands of the Plaintiffs are tainted and she cannot expect any aid from a Court of equity.  The said Application is dismissed with costs.

Dated, Signed and Delivered in Court at Nairobi this 13th day of July, 2017.

F. TUIYOTT

JUDGE

PRESENT;

N/A for Plaintiff

N/A for Defendant

Carlos -  Court Clerk