Multiple proceedings on same cause of action is abuse of court process

High Court of Kenya at Nairobi:  It is a settled law that a litigant has no right to pursue pari passu two processes which will have the same effect in two courts at the same time with a view of obtaining victory in one of the process or in both.

The petitioners are accused of filing multiple suits on the same cause at different courts. According to the court records, respondents had sued the petitioners at the Co-operative Tribunal at Nairobi in C.T.C No. 253 of 2016, in which the decision came out to be against the petitioners. The present petition filed contains the same issues as were raised before the Tribunal.

While deciding the petition, Justice Niki Tobi JSC of Nigeria observed that “abuse of court process creates a factual scenario where a party is pursuing the same matter by two court process.”

Applicant implied that the application filed on 21.11.2016, seeking to stay the same order as complained of in the appeal was dismissed without hearing, which amounts to error.

Judge John M. Mativo, stated that High Court has a power of review, but the power must be exercised within the framework of Section 80, Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, 2010. Hon’ble Court referred to the case of Ajit Kumar Rath v. State of Orissa, (1999) 9 SCC 596 discussing what constitutes “sufficient reason” in an application for review. It pointed out that “any other sufficient reason” used in Order 47 Rule 1 means a reason sufficiently analogous to those specified in the rule.” Therefore, an applicant has to show that there was a mistake or error apparent on the face of the record or for any other sufficient reason.

Since, the applicant failed to comply with Section 80 and Order 45 Rule 1, in regard to demonstrating any new and important matter or evidence which after due diligence was not within its knowledge or could not be produced at that time, no sufficient reason was seen to warrant the Court to exercise its discretion in its favor. In wrapping up the case, it was decided that the application dated 21.11.2016 was dismissed on the basis of not providing sufficient grounds for review. [Zakayo Sang v. The Attorney General, Petition No. 360 of 2016, decided on 24.07.2017]

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