- This is the ex tempore Ruling delivered on the Petitioner's Counsel's oral application for withdrawal of the petition made today, and which is intended to buttress the Notice of Withdrawal dated 26/03/2025 filed by the Petitioner on 27/03/2025. The oral application was made by Counsel for the Petitioner at today's mention date.
- In support of the withdrawal, Counsel Mabeya, learned counsel for the Petitioner, urged the Court to allow the withdrawal with no orders as to costs on the basis that the pleadings in the matter were never served on the Respondents or the Interested Party.
- Whereas neither Ms. Chibole for the 1st, 3rd, and 4th Respondents and Mr. Mulati for the 2nd Respondent opposed the withdrawal per se, Ms. Chibole, learned counsel, brought it to the attention of the Court that the same Petitioner had filed an Application and Petition word-for-word identical to the present ones pending before this Court, through the same law firm. That other matter was stated as being Kibera HCCHRPET E003/2025, with identical partiers.
- In rejoinder, Mr. Mabeya did not deny that there was a Kibera High Court matter identical to the present one pending before this Court. He ascribed the double-filing to a change of heart by the Petitioner, who realized that the Kibera Court was closer to the location where the impugned occurrences took place; and thus the Kibera matter should continue and the present one be withdrawn. Counsel Mabeya also confirmed that the Kibera Matter came up for inter partes hearing of the interlocutory application on the morning of 27/03/2025 and it was argued orally; with a decision that yielded interim conservatory orders being delivered that afternoon.
- After hearing from counsel, the Court has noted that the Application and Petition herein are identical to HCCHRPET E003/2025 pending before the High Court Sitting in Kibera, a station to which this Judge is mapped. The Petition in Milimani HCCHRPET No. E137 of 2025 was filed on 19/03/2025 together with an Application seeking conservatory orders. On 20/03/2025 at 08:33AM, as per the time stamp on the Directions issued on that date, this Judge in Chambers declined to grant ex parte conservatory orders and instead issued directions for service and towards inter partes hearing, with a mention date fixed for 28/04/2025. Having been unsuccessful at Milimani, at 11:40AM on the same 20/03/2025, and most certainly after seeing this Court's Directions issued earlier that morning, the Petitioner filed the same Petition and Application in Kibera using the same law firm. The Application in Kibera came up for inter partes hearing on 27/03/2025; and the High Court sitting in Kibera heard the Application orally and granted orders on the same day in the afternoon.
- It is clear from the chronology of events that this is an instance of forum shopping wherein a Petitioner files two Petitions and Applications that are word-for-word identical and are filed by the same law firm; and this the Petitioner hedges its bets as it were and obtains two bites at the cherry. If Kibera had not granted the orders, likely this Petition before this Court would have continued.
- However, and notwithstanding that Kibera HCCHRPET No. E003/2025 was filed after the present Petition, this Court shall allow the withdrawal of this suit which contains an identical Application to that which was heard and determined by the High Court sitting in Kibera, thus making the Applicaiton before this Court res judicata of the High Court as a whole.
- That being said and noting that the Kibera Matter is coming up on 13/06/2025 for mention before the Hon. Lady Justice Diana Kavedza, I order that a copy of today's proceedings and a copy of this Ruling be typed and placed in Kibera HCCHRPET No. E003/2025 for the gracious information of Her Ladyship.
- In this file, and with the Court expressing its dissatisfaction at the Petitioner's forum shopping which has served to utilize scarce judicial time in two stations of the High Court and which has forced the Respondents to attend multiple fora on the same issue, the Court allows the withdrawal of the Petition herein with no orders as to costs.
- After completion of the actions required by (8) above, this File to Be Closed Accordingly.
Dated, Signed, and Delivered Virtually on this Nineteenth Day of May in the Year 2025 in the Presence Of:
Mr. Mabeya - Counsel for the Petitioner
- Ms. Chibole - Counsel for the 1st, 3rd, and 4th Respondents
- Mr. Mulati - Counsel for the 2nd Respondent
- Ms. Neema - Court Assistant