Case ID:185124

WRK v FM [2021] eKLR

Case Metadata

Case Number:

Civil Suit 10 of 2019

Parties:

WRK v FM

Date Delivered:

29 Oct 2021

Case Class:

Civil

Court:

High Court at Nairobi (Milimani Law Courts)

Case Action:

Ruling

Judge(s):

Maureen Akinyi Odero

Citation:

WRK v FM [2021] eKLR

Court Division:

Family

Case Outcome:

Notice of Motion dismissed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

FAMILY DIVISION

CIVIL SUIT NO. 10 OF 2019

IN THE MATTER OF SECTION 2,6,7 AND 17 (1) OF THE MATRIMONIAL PROPERTY ACT NO. 49 OF 2013

WRK.......RESPONDENT

VERSUS

FM.............APPLICANT

RULING

1. Before this court for determination are two applications. First is the

Notice of Preliminary Objection

dated

20

th

January 2021

in which the Applicant

WRK

objects to the Respondents originating summons dated

18

th

December 2020

on grounds that:-

“1. The issues raised in the pleadings herein are completely similar to the issues raised in Civil Sit No. 10 of 2020 contrary to section 6 of the Civil Procedure Act 2010.

2. The application creates duplicity of suits.

3. That the Honourable court lacks substantive jurisdiction

to determine the issues in dispute herein”

2. The second application for the considering of the court is the Notice of Motion dated

18

th

February 2021

filed by the Respondent

FM

seeking the following orders: -

“1. That this suit be consolidated with High Court Family Civil Suit No E002 of 2021 filed in Nairobi for hearing and determination.

2. THAT costs of this application be provided.

3. Following directions made by the court the two matters were heard together by way of written submissions. The Respondent filed the written submissions dated

29

th

July 2021

whilst the Applicant relied upon her written submissions dated

8

th

July 2021.

BACKGROUND

4. The applicant

WRK

instituted proceedings in

Matrimonial Case No. 10/2019

vide the Originating Summons dated

26

th

February 2019

seeking the following:-

“1. THAT an order do issue declaring that there is no union of marriage between the Applicant and the Respondent.

2. THAT an order does issue declaring that the property known as Title Number Kiambu/Mun. Block 6/xxx together with the developments thereon is not matrimonial property;

3. THAT a mandatory injunction do issue against the Respondent compelling him to vacate the property known as Title Number Kiambu/Mun. Block 6/xxx forthwith;

4. THAT the Respondent be ordered to surrender to the Applicant, the remote control keys to the gate and the main door and the regular keys to the two exterior doors of the Applicants house which he has forcibly withheld.

5. THAT a permanent injunction do issue against the Respondent, his agents, servants or any person acting by or through the authority restraining them from entering or being in close proximity to the property known as Title Number Kiambu/Mun. Block 6/xxx or any other property belonging to and/or registered in the name of the Applicant.

6. THAT a permanent injunction do issue against the Respondent, his agents, servants or any person acting by or through his authority restraining them from staking claim or taking possession of any property belonging to or registered in the name of the Applicant.

7. THAT the OCS police station be directed to assist in the execution and compliance of the above orders.

8. THAT the Respondent bears the costs of this suit”.

5.The Respondent

FM

on the other hand filed

Matrimonial Cause No. E002

of 2021 (OS)

in which he filed the

Originating Summons

dated

18

th

February 2021

seeking the following orders: -

“1.

That the court do make a presumption under section 119 of the Evidence Act that the marriage contracted by

WRK

and

NM. On 9

th

day of February 1996 evidenced by a decree of divorce in 2003.

2.

That the court do make a further presumption that FM and WRK were in a valid marriage since 2005.

3.

That the court do make a declaration that the properties acquired within the cohabitation/marriage between the parties were matrimonial properties.

4.

That this Honourable court be pleased to make such further orders as the interests of justice may require.

5.

That the Respondent be condemned to pay costs of this Application and incidental thereto”.

6. Contemporaneously with the originating summons the Respondent also filed a Notice of Motion dated

18

th

February 2019

seeking the following orders:-

“1. THAT this suit be consolidated with High Court Family Civil Suit No. E002 of 2021 filed in Nairobi for hearing and determination together.

2. THAT costs of this Application be provided for”.

7. Thereafter the Applicant filed the Notice of Preliminary Objection dated

20

th

January 2021.

ANALYSIS AND DETERMINATION

8. I have considered the two applications before me as well as the written submissions filed by both parties. The only issue this court is required to determine is whether the suit filed by the Respondent being

Matrimonial Cause No. E002 of 2021

is

sub-judice.

9. It is common ground that the Applicant filed the

Matrimonial Cause No

10 of 2019

on

20

th

February 2019.

It is not in dispute that

after

the Applicant had filed suit the Respondent then proceeded to file

Matrimonial Cause No E002 of 2021.

10. The

Preliminary Objection

dated

20

th

January 2021

premised on the following grounds: -

“1.

That the originating summons in Civil Suit No E002 of 2021 dated

18

th

December 2021 raises completely similar issues to the ones raised in the Originating Summons dated 28

th

February 2019 in Civil Suit No. 10 of 2019, contrary to Section 6 of the Civil Procedure Act.

2. That the said Originating Summons creates duplicity of suits and is therefore, bad in law.

3. That this Honourable court should not countenance the consolidation of Civil Suit No. 10 of 2019 with a suit that is a nullity

an initio

”.

11. The Applicants submits that the suit filed by the Respondent raises the same issues and involves the same parties as the suit which was filed earlier by the Applicant herself. That the Respondent ought to have filed a reply to

suit No. 10 f 2019

as filed by the Applicant instead of filing a separate suit as this merely leads to a multiplicity of suits which amounts to an abuse of court process. That in light of the provisions of

Section 6

of the

Civil Procedure Act Cap 21 Laws of Kenya

, the issues raised by the Respondent in

suit No. E002

of 2021

are ‘

sub-judice’

.

12. The Applicant further submits that the Respondents action in filing a separate suit raising the same issues and involving the same parties as a previously instituted suit

runs contra

to the provisions of

section 1A

of the

Civil Procedure Act

.

13. Finally, the applicant submits that the application seeking to have the two suits consolidated is mischievous as it offends the

sub-judice

rule. She urges the court to strike out the Respondents suit with costs.

14. As stated earlier the Preliminary Objection was opposed by the Respondent. The Respondent whilst conceding that the two suits involved the same parties argued that the reliefs sought in the two suits were different, Counsel for the Respondent argued that it would be ‘

draconian’

to strike out Suit No

E002 of 2021

and submitted that it would be more convenient and efficient to consolidate the two suits.

15.

Section 6

of the

Civil Procedure Act

sets out the principle of

sub-judice

as follows: -

6.“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”.

16.

In the case of

KENYA NATIONAL COMMISSION ON HUMAN RIGHTS – VS – ATTORNEY GENERAL, I.E.B.C., & 16 OTHERS

[2020] eKLR,

the

Supreme Court of Kenya

Stated as follows:-

“…A party that seeks to invoke the doctrine of res sub-judice must therefore establish that:

there is more than one suit over the same subject matter

;

that one suit was instituted before the other;

that both suits are pending before courts of competent jurisdiction

and lastly;

that the suits are between the same parties or their representatives

…”

[Own Emphasis]

17. From the above authorities it is clear that a court would be barred from proceeding with a subsequent suit in which the issues are the same as those raised in a previously instituted suit between the same parties.

18. The two suits

10 of 2019

and

E002 of 2020

undoubtedly involve the same parties. I have perused the orders being sought in the two suits. They both touch on the question of whether or not a marriage exists between the parties and both suits involve a dispute over property allegedly acquired during the subsistence of said marriage. It is evident that both suits raise the same issues.

19. I do agree with the applicants submissions that the Respondent ought to have filed a reply to the Applicants suit

No. 10 of 2019

instead of instituting another suit over the same issues. All that the Respondent has done is to couch the same issues in different terms – which is merely a difference without a distinction.

20. The court is mindful of the fact that the striking out of a suit is considered to be a draconian measure. However, my finding is that suit

No. E002 of 2020

was definitely filed in total disregard of the provisions of

Section 6

of the

Civil Procedure Act

. To entertain the same would unnecessarily stretch the courts meagre resources and time. I find that suit

No. E002

of 2021

is

sub-judice

and the same is struck out in its entirety. Accordingly, the Preliminary Objection succeeds.

21. Given the success of the Preliminary Objection the Respondents Notice of Motion dated

18

th

February 2021

is left with no legs to stand on. It is manifestly clear that the application for consolidation was filed merely to defeat the

sub judice

Rule.

22. In

Republic v Paul Kihara Kariuki, Attorney General & 2 others

Exparte

Law Society of Kenya [2020] eKLR

the

Honourable Judge

states as follows: -

“… the issues at hand are crystal clear, namely, whether this suit offends the question of

sub judice

and whether it is an abuse of court process. If the answers are in the affirmative, then consolidation would be impermissible because its application was never meant to cure or cover the doctrine of

sub judice

or abuse of court process.

Put differently, a plea for consolidation is not permissible in circumstances whereby it is evident it is being used to evade the wrath of the

sub judice

rule as opposed to serving the settled principles of consolidation

”

.

23. Accordingly, the Notice of Motion dated

18

th

February 2019

is dismissed in its entirety. This being a family matter I make no orders on costs.

DATED IN NAIROBI THIS 29

TH

DAY OF OCTOBER, 2021

…………………………………..

MAUREEN A. ODERO

JUDGE