At today's hearing, the Court was informed by Counsel for the Interested Party that there is a High Court Commercial Appeal pending before the Milimani Commercial and Tax Division as HCCOMMA E096/2024 in which the Subject Motor Vehicle herein, KDN 041C, is also the subject therein. This case was not disclosed to the Court in the Petition or in the Application filed by the Petitioner.
I have perused the pleadings in that Commercial Appeal and I note that vide Prayer No. 3 of the Appellant's Application dated 21/06/2024, the Appellant/Applicant therein, who is the Petitioner/Applicant herein and is represented by the same law firm in both matters, is seeking an interim injunction preventing the transfer and/or registration of interests in KDN 041C without the consent of the Appellant/Applicant. Prayers No. 4 of that Application pending before the Commercial and Tax Division seeks to register a caveat over the subject motor vehicle.
Those two prayers are substantively the same or are an extension of the Prayers Nos. 2, 3, 4, and 5 of the Application dated 20/03/2025 pending before this Judge. I have considered the Application and Petition herein in light of the pleadings filed by the Appellant in the Commercial Appeal and I also note that there is a close nexus between the Petition and the Appeal, and the two revolve around the same broad subject matter and issues of law and fact, albeit with the constitutional petition adding more material and seeking some new constitutional reliefs.
Having considered the matter after hearing counsel at today's hearing, I am satisfied that this is an instance of 'forum-shopping' whereby the Petitioner herein has approached the High Court at both the Petition and Application stages of the present constitutional petition to have two bites at the cherry as it were, having previously filed a Commercial Appeal on the same broad subject matter. The additional constitutional issues raised are insufficient to negate that finding, as they are ancillary to the core issues in dispute which are the same as those in the Commerical Appeal filed earlier in time and which is active before the Commercial and Tax Division, with the Application for injunctive relief still pending ruling in that Division.
I am also fortified in my position by noting that the other matter is an appeal against the entire decision of the Cooperative Tribunal in Tribunal Case No. 301/E349 OF 2022. That other matter is better equipped to get to the root of the controversy and settle the substantive dispute, even if there had been no forum shopping.
Consequently, I find that both the Application and the Petition herein were filed as an abuse of the Court process and I hereby strike out both the Application and the Petition with costs to the Interested Party, which are assessed at Kenya Shillings 30,000.00 and which shall be borne by the Petitioner.
File Closed Accordingly.
Date, Signed, and Delivered in Virtual Court During the Hearing of 03/06/2025, in the presence of:
Mr. Ned Chemoiwa - Counsel for the Petitioner
Ms. Sharon Atieno - Counsel for the Interested Party
No Appearance for the Respondent
Ms. Neema - Court Assistant
I have perused the pleadings in that Commercial Appeal and I note that vide Prayer No. 3 of the Appellant's Application dated 21/06/2024, the Appellant/Applicant therein, who is the Petitioner/Applicant herein and is represented by the same law firm in both matters, is seeking an interim injunction preventing the transfer and/or registration of interests in KDN 041C without the consent of the Appellant/Applicant. Prayers No. 4 of that Application pending before the Commercial and Tax Division seeks to register a caveat over the subject motor vehicle.
Those two prayers are substantively the same or are an extension of the Prayers Nos. 2, 3, 4, and 5 of the Application dated 20/03/2025 pending before this Judge. I have considered the Application and Petition herein in light of the pleadings filed by the Appellant in the Commercial Appeal and I also note that there is a close nexus between the Petition and the Appeal, and the two revolve around the same broad subject matter and issues of law and fact, albeit with the constitutional petition adding more material and seeking some new constitutional reliefs.
Having considered the matter after hearing counsel at today's hearing, I am satisfied that this is an instance of 'forum-shopping' whereby the Petitioner herein has approached the High Court at both the Petition and Application stages of the present constitutional petition to have two bites at the cherry as it were, having previously filed a Commercial Appeal on the same broad subject matter. The additional constitutional issues raised are insufficient to negate that finding, as they are ancillary to the core issues in dispute which are the same as those in the Commerical Appeal filed earlier in time and which is active before the Commercial and Tax Division, with the Application for injunctive relief still pending ruling in that Division.
I am also fortified in my position by noting that the other matter is an appeal against the entire decision of the Cooperative Tribunal in Tribunal Case No. 301/E349 OF 2022. That other matter is better equipped to get to the root of the controversy and settle the substantive dispute, even if there had been no forum shopping.
Consequently, I find that both the Application and the Petition herein were filed as an abuse of the Court process and I hereby strike out both the Application and the Petition with costs to the Interested Party, which are assessed at Kenya Shillings 30,000.00 and which shall be borne by the Petitioner.
File Closed Accordingly.
Date, Signed, and Delivered in Virtual Court During the Hearing of 03/06/2025, in the presence of:
Mr. Ned Chemoiwa - Counsel for the Petitioner
Ms. Sharon Atieno - Counsel for the Interested Party
No Appearance for the Respondent
Ms. Neema - Court Assistant