JUDGMENT OF THE COURT
The appellant Nguruman Limited is the title holder to land parcel L.R. No.NAROK/NGURUMAN/KAMORORA/1 in Narok District in the Rift Valley Province. The respondents in this appeal through their learned counsel, Mr. Egala state that the title was not properly obtained as there was fraud involved but they agree that it was a first registration and by dint of section 143 of the Registered Land Act, that title to the land cannot be challenged. Further, they agree that by an earlier decree of a competent court of law to which we shall refer in this judgment, the question of ownership of the same land had been settled in favour of the appellant. In a plaint dated 12th February 1991 and filed in the Magistrate’s Court at Narok on the same day against Shompole Group Ranch, (one of the respondents in this appeal) i.e. Civil Case No. 15 of 1991, the appellant stated at paragraph 4 thereof as follows:
“On diverse days of December 1990, notably 4th, 7th, 8th and 27th days of December 1990 members of the defendant Group Ranch entered, with their livestock, the plaintiff’s land and allowed their livestock to graze, threatened the chairman lessee and workers of the farm; cut down trees in preparation for permanent occupation”.
That case was heard by the Resident Magistrate at Narok and the Magistrate made the following order and further order:
“The office bearers of the defendant Shompole Group Ranch that is the Chairman, the Secretary and the Treasurer, are each ordered to pay a fine of Kshs.6,000/= or serve a jail term of (3) three months for contempt of court. These penalties are imposed under O.39 rule 3 of the Civil Procedure Rules. The fine must be paid to this Court within 14 days from the date of this order.
DATED, signed and delivered this 25th day of March, 1991.
FURTHER ORDER:
The defendants are permanently restrained by themselves, their servants, agents, members or otherwise from continuing or repeating the trespass to the plaintiffs land as complained of and as physically marked in Official records and so confirmed by the District Land Registrar with the District surveyor Kajiado on 27/9/91 in the presence of both the plaintiff and the defendants. The Provincial Administration is required to ensure compliance.
Dated, signed and delivered in Narok this 25th day of November, 1991”.
Mr. Gross, learned counsel for the appellant said in his submission before us that although they got the above orders of the Resident Magistrate at Narok and although the orders were at first set aside on appeal by the superior court but later reinstated by this Court again on appeal and so are still in law valid, he and his clients were and still are unable to have the orders executed despite several attempts made by them and so upto the time the appeal was canvassed before us, the defendants in that suit in the Resident Magistrate Court, namely, Shompole Group Ranch members are still on the land. They are in this appeal the first four respondents, namely, Shompole Group Ranch, Moshila ole Matayian, Nkoitiko ole Napidiya and Turana ole Kumari. While that feud was going on, another Group Ranch, this time Ol Kiramatian Group Ranch also invaded the same land on diverse days notably on 4th October, 2000. That group ranch was composed of about 400 members. They were led by the three officials of the group ranch who are parties herein. We were told from the bar and it was not disputed that they settled on another part of the land as the land is expansive.
The appellant, having failed to execute the orders granted by the Resident Magistrate in 1991, apparently got overwhelmed. It filed two suits in the superior court. The first suit was H.C.C.C. No. 145 of 2001 and the second was H.C.C.C. No. 146 of 2001. Both were filed at Nairobi.
The first case, i.e. H.C.C.C. No. 145 of 2001 was against the first lot of alleged trespassers i.e. Shompole Group Ranch and its three officials, against whom the appellant had failed to execute orders given by the Resident Magistrate. We may state at this juncture that in that plaint the appellant pleaded at paragraph 3 as follows:-
“Plaintiff avers that there is no other suit pending between the parties or any of them. There was a previous suit between the plaintiff and the first defendant being Narok RMCC No. 15 of 1991 in which an order of the court was made on the 25th November, 1991 penalising the first defendant’s office bearers for contempt of court and issuing a permanent injunction against trespassing on the plaintiff’s property. Judicial review of the order was allowed by application of the High Court in Miscellaneous Application No. 930 of 1991 on the 23rd February 1993 and the order of the Magistrate was reinstated by the Court of Appeal in CA No. 52 of 1993 on the 13th July, 1994.”
The cause of action in that suit was spelt out at paragraph 6 where it was pleaded:-
“6. On divers days in the months of August and September, 2000, about 500 members of the first defendant Group Ranch led by the second, third and fourth defendants entered armed with dangerous weapons with their livestock, on the plaintiff’s land threatened the chairman, lessee and workers of the farm, cut down trees and generally committed waste and destruction on the plaintiff’s property and continue to cultivate and trespass on the plaintiff’s property.”
At paragraph 7, that plaint pleads that the defendant’s member’s action amounted to trespass to the land and property and as a result appellant suffered damage as its air strip runway was destroyed; about 10,000 trees and shrubs were cut down; the water headworks and pipeline were destroyed; road network was destroyed and the land was wrongfully cultivated. The plaintiff (now appellant) claimed special damages amounting to Kshs. 86,073,449/30 and sought eviction of the defendants (now the first group of respondents) and a permanent injunction to restrain the first group of respondents from continuing or repeating their trespass on the suit land.
The second suit i.e. HCCC No. 146 of 2001 was filed against the second group of alleged invaders who were members of Ol Kiramatian Group Ranch, again led by its officials Mointi Lemarora Nkoyokoy, Albert Kuseyo Kipainoi and Mugesa Ole Lemarora. In that suit the appellant stated at paragraph 3 as follows:-
“3. The plaintiff avers that there is no other suit pending and that there have been no previous proceedings in any court between the plaintiff and the defendants over the same subject matter.”
The cause of action as pleaded at paragraph 6 of that plaint is that:-
“On divers days notably 4th October, 2000 about 400 members of the first defendants Group ranch led by the second third and fourth defendants entered armed with dangerous weapons with their livestock, on to the plaintiffs land, threatened the chairman, lessee and workers of the farm, cut down trees and generally committed waste and destruction on the plaintiff’s property and continue to cultivate and trespass on the plaintiffs property.”
Like in the HCCC No. 145 of 2001, the plaintiff in that suit (now appellant) pleaded that the acts of the defendants (the respondents in this case) amounted to trespass to land and property and as a result the appellant suffered damage which it put at Ksh. 83,073,449/30. In HCCC No. 146 of 2001, the appellant also sought eviction, permanent injunction as well as special damages stated as above.
The respondents entered defence for both suits separately. In HCCC No. 145 of 2001, it stated at paragraph 3 as follows:-
“3. The defendants admits (sic) part of paragraph 3 of the plaint to the extent that there have been previous proceedings but avers that these previous proceedings have not been concluded and are indeed valid and proceeding and seek and cover similar relief sought in the plaint and consequently the defendants aver that the plaint is bad in law and should be struck out.”
The respondents in their defence at paragraph 7 further state:-
“The 1st, 2nd, 3rd and 4th defendants makes (sic) no admission to the contents of paragraph 7 of contents the plaint as there was no trespass nor damage to property as alleged as the land was grabbed and fraudulently and erroneously transferred and registered in the name of the plaintiff and their claim for damages as particularized in paragraph 7 is misplaced and further to the foregoing because of the plaintiff’s illegal occupation of the land the 1st, 2nd, 3rd and 4th defendants jointly and severally have lost and suffered the following:-...........”
The respondents in that defence readily agreed that they were in the subject land but they claim that it is their ancestral land and that they have to settle on it on the basis that it had always been their ancestral land and they sought to continue staying in the land. As to HCCC No. 146 of 2001, their defence states at paragraph 3 as follows:-
“The defendants in answer to paragraph 3 of the plaint wishes (sic) to state that there have been previous proceedings in HC MISC. Application No. 930 of 1991 between Shompole Group Ranch and the plaintiff Nguruman Limited which proceedings have not been concluded and are indeed valid and pending and seek and cover similar relief sought in the plaint, and again in HCCC No. 145 of 2001 seeking and covering similar relief sought against Shompole Group Ranch and which similar reliefs are being sought against us and consequently the defendants aver that the plaint is bad in law and should be struck out.”
We observe at this juncture that although the defendants in this suit were alleging that the suit was bad on account of the previous suits in the subordinate court and the superior court, it, by inference made it clear that they were not parties to those other previous suits. Be that as it may, its defence to that suit was virtually the same as its defence in HCCC No. 145 of 2001 namely that the appellant though registered as the title holder to the same land, that registration was fraudulently secured after the appellant had grabbed the land which was originally the property of the respondents and remained the respondents ancestral land to which they could return and did return and settled on as their land. They denied that the appellant suffered any damages at all and denied trespass into the suit land.
On 30th May 2001, the appellant filed Chamber Summons dated 22nd May 2001 seeking one main order and that was an order that the statement of defence in HCCC No. 145 of 2001 be struck out and judgment be entered for the plaintiff as prayed in the plaint on the grounds that the respondents admitted in their statement of defence that the appellant was the registered proprietor of the suit property and they also admitted that they had trespassed on to the suit property and in any case, that the respondents had admitted that the issue of ownership had been settled in the decision in RMCC No. 15 of 1991 as confirmed by the Court of Appeal decision in Civil Appeal No. 52 of 1993. That application was brought under Order 6 rule 13 (1) (b) (c) and (d) and Order 12 rule 6 of the Civil Procedure Rules as well as section 7 of the Civil Procedure Act. Similar application was made in respect of HCCC No. 146 of 2001 on similar grounds. On 26th July, 2001, by an order made and delivered by Aganyanya J. the two suits were consolidated. The two applications were subsequently placed before Ombija J., who after hearing them expressed himself thus in a ruling delivered on 25th January, 2002.
“In my view, I find and hold that, in the disclosed circumstances, the filing of the current suit seeking prayers of eviction and injunction while the decree of the Narok Court in RMCC No. 15 of 1991 still stands makes the defence of res-judicata as alluded to in paragraph three (3) of the respondents’ defences tenable in law. I therefore decline to strike out the defence dated 19th March, 2001.
The inevitable upshot is that the application dated 22nd May, 2001 fails and is hereby dismissed with costs.
This ruling applies with equal force to NAIROBI HCCC NO. 146 of 2001 by virtue of an order of DKS Aganyanya, J, dated 25th July, 2001. The inevitable upshot is that application dated 22nd May, 2001 in HCCC No. 146 of 2001 is equally dismissed with costs.”
The appellant felt aggrieved with that decision and in a Notice of Motion dated 16th April, 2002, filed in respect of both suits now consolidated, the appellant sought a review of that ruling of Ombija J., on grounds that there was an error on the face of the record as manifested by the court’s finding that the issue of res judicata as applicable in HCCC No. 145 of 2002 between the appellant and Shompole Group Ranch should apply in equal force in HCCC No. 146 of 2001 between appellant and Olkiramatian Group Ranch who were not parties to Narok RMCC No. 15 of 1991. Appellant maintained that the only issue which was res judicata in the entire matter was that of ownership of the suit property which had been decided in RMCC No. 15 of 1991 and that should have necessitated defence being struck out.
In the meantime prior to that application for review by the appellant, on 9th April, 2002, the respondents filed Chamber Summons dated the same 9th April, 2002 in HCCC No. 145 of 1991 in which they sought the following orders:-
“1. That the plaint as against the defendants be struck out as disclosing no reasonable cause of action and the suit be dismissed.
2. That the costs of this application and of the suit be borne by the plaintiff.”
That application was brought pursuant to Order 6 rule 13 (1) (a) and (2) and rule 16 of the Civil Procedure Rules and section 3A and 7 of the Civil Procedure Act of the Laws of Kenya. The grounds of that application were that the decree in Narok RMCC No. 15 of 1991 embodied orders that were being sought in the suit and hence the matter was res judicata; that the superior court had held on 25th January, 2002 that the suit which was seeking prayers for eviction and injunction while the decree in Narok court in RMCC No. 15 of 1991 still stood made the defence of res judicata tenable in law; that the reliefs sought in that suit had been given in the previous suit; that the issues to be decided had been heard and finally decided in the previous suit in Narok RMCC No. 15 of 1991; that the appellant admitted in the plaint that the issue of ownership the subject matter in the suit had been settled in Narok RMCC No. 15 of 1991; that the plaint therefore disclosed no reasonable cause of action. That application as is the law, had no supporting affidavit but the appellant filed an affidavit in reply to it.
The appellants Notice of Motion dated 16th April, 2002 was as could be expected, being a review application, heard by Ombija J. who in a ruling delivered on 24th January, 2003 dismissed it stating in part as follows:-
“The plaints in both suits are substantially similar and the reliefs sought are identical. In these circumstances, the filing of the present suit seeking prayers of eviction and injunction while the decree in Narok RMCC 15 of 1991 stands makes the defence of res judicata as alluded to in paragraph 3 of the respondents defence in HCCC 145 of 2001 and HCCC No. 146 of 2001 tenable in law.
The application for review, thereby fails and is dismissed with costs to the respondents.
This ruling applies with equal force to NAIROBI HCCC No. 146 of 2001 by virtue of the order of DKS Aganyanya J. dated 26th July, 2001. It is so ordered.”
The respondents’ application to strike out plaint which we have referred to hereinabove dated 9th April, 2001 came up for hearing before Mugo, Ag. J. (as she then was). In a ruling dated 30th January, 2004, the learned Judge of the superior court allowed the application and thus struck out the plaints in both HCCC No. 145 of 2001 and HCCC No. 146 of 2001. In doing so she stated inter alia thus:-
“I would not say that the respondents have put up a reasonable defence to the application to warrant the court to disallow this application.
Coming specifically to the prayers herein, I find that for the reasons given above, defence (sic) discloses no reasonable cause of action and that the same should be struck out. The application is therefore allowed, and the plaint struck out. Consequently, the suit is an abuse of the process of the court and vexatious and ought to be dismissed to use the words of Justice Bingham in Attorney General v. Backer, the Times, March 2000, quoted in the Supreme Court. Procedure Rules at paragraph 4, 3.3.
“It is an abuse (of the process) to bring vexatious proceedings i.e. two or more sets of proceedings in respect of the same subject matter which amounts to harassment of the defence in order to make him fight the same battle more than once with the attendant multiplication of costs, time and stress.”
I therefore allow this application and grant the orders as prayed with costs to the applicants.”
The appellant felt aggrieved with the decision and hence this appeal before us which is premised on eight grounds of appeal. On our part the following grounds need to be reproduced in this judgment.
“1. The learned Judge erred in law and in fact in failing to consider the appellant’s Replying affidavit dated 14th May 2002 in reply to the Chamber Summons dated 9th April, 2002 filed by the respondent seeking to strike out the appellant’s plaint.
2. The learned Judge misdirected herself by first indicating that the appellant did not file a Replying affidavit in reply to the respondent’s application to strike out the plaint and yet she recorded the presentation of the same in the record of proceedings.
3. .................
4. .................
5. The learned Judge erred in law and fact by holding that a trespass in 1991 raises the same cause of action as a trespass committed in 2000, despite the fact that it is a well established principle of law that every trespass is a different cause of action and the damages arising out of a trespass in 1991 are different from those arising out of a trespass in 2000.
6. The learned Judge erred in law and fact in finding that the relief sought in this suit had already been decided upon in RMCC 15 of 1991 Narok Court. The issue, cause of action and damages are substantially different from those which have already been decided in the aforesaid case in the court in Narok.
7. The learned Judge erred in law and fact by upholding the rulings of Justice Ombija dated the 25th February, 2002 (sic) and the 24th of January, 2003 which confused the issue of res judicata as opposed to issue of estoppel.
8. The learned Judge’s decision to strike out the plaint was contrary to law and against the weight of the pleadings and has prejudiced the appellant’s legal rights of sanctity and protection of property.”
Mr. Gross, learned counsel for the appellant addressed us at length in support of the above grounds of appeal and referred us to several authorities in support of the appellant’s case. Mr. Egala likewise addressed us at length in supporting the respondent’s case. We have considered the submissions, the record, the various relevant rulings on record together with the ruling the subject of this appeal, and the law.
The application that was before the learned Judge of the superior court, was as we have stated brought under Order 6 rule 13(1)(a) of the Civil Procedure Rules. That rule reads as follows:-
“13(1) At any stage of the proceedings the Court may order to be struck out or amended any pleading on the ground that-
(a) It discloses no reasonable cause of action or defence.”
The principles guiding the Court when considering such an application are now well documented and the law is settled by dint of several legal authorities. We may refer to the leading authority in the same and that is the case of D.T. Dobie and Company (Kenya) Ltd v. Muchina, (1982) KLR 1 in which Madan JA (as he the was) stated inter alia as follows:-
“The Court ought to act very cautiously and carefully and consider all facts of the case without embarking upon a trial thereof before dismissing a case for not disclosing a reasonable cause of action or being otherwise an abuse of the process of the court. At this stage, the court ought not to deal with any merits of the case for that is a function solely reserved for the judge at the trial as the court itself is not usually fully informed so as to deal with the merits “without discovery, without oral evidence tested by cross-examination in the ordinary way,” Sellers LJ. (supra). As far as possible indeed, there should be no opinions expressed upon the application which may prejudice the fair trial of the action or make it uncomfortable or restrict the freedom of the trial judge in disposing of the case in the way he thinks right.
If an action is explainable as a likely happening which is not plainly and obviously impossible, the court ought not to overact by considering itself a bind summarily to dismiss the action. A court of justice should aim at sustaining a suit rather than terminating it by summary dismissal. Normally a law suit is for pursuing it.
No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it.
On the other hand, if there is a point of law which merits a serious discussion, the court should be asked to proceed under Order X1V rule 2.”
That decision of Madan JA (as he then was) in the case above has been consistently followed and is sound law. In the case of Crescent Construction Co. Ltd. v. Delphis Bank Ltd Civil Appeal No. 146 of 2001 decided on 9th February, 2007, this Court after quoting it with approval further stated:-
“However, one thing remains clear, and that is that the power to strike out a pleading is a discretionary one. It is to be exercised with the greatest care and caution. This comes from the realization that the Court must not drive away any litigant however weak his case may be from the seat of justice. This is a time-honoured legal principle. At the same time, it is unfair to drug a person to the seat of justice when the case purportedly brought against him is a non-starter.”
It is with the above principles in mind that we now proceed to consider this appeal before us. In doing so, however, we must bear in mind that we too cannot decide the merits or otherwise of the entire case that was before the superior court for to do so would again dispose of the entire suit either way possibly without the right court ventilating through evidence, the effect of the pleadings at a full hearing. Further, we bear in mind the well settled principle of law as enunciated in among others, the case of Jeraj Shariff and Co. v. Chotai Fancy Stores (1960)EA 374 that:-
“The question whether a plaint discloses a cause of action must be determined upon a perusal of the plaint alone, together with anything attached so as to form part of it, and upon the assumption that any express or implied allegations of fact in it are true.”
There were two plaints before the superior court. The first plaint was in HCCC No. 145 of 2001. The second plaint was in HCCC No. 146 of 2001. The two were consolidated as we have stated such that when Chamber Summons dated 9th April, 2002 was heard and allowed, the effect, namely striking out the suit applied to both plaints and so both were struck out. The main reason for finding that the two plaints disclosed no reasonable cause of action was that the decree in Narok RMCC No. 15 of 1991 embodied orders that were being sought in both plaints and that the injunction granted in Narok RMCC No. 15 of 1991 still stood and applied to both suits so that the two cases filed in the High Court in the year 2001 were caught up with the doctrine of res judicata and therefore they lacked any reasonable cause of action as those were premised, if we understood the respondent, upon action that a competent court had taken on a similar matter. All the appellant needed to do, according to the respondents was to execute the injunction granted in RMCC No. 15 of 1991. Further, the respondent contended that Ombija J. in his ruling, part of which we have reproduced, agreed that the suits were res judicata. The learned Judge of the superior court (Mugo J.) accepted that proposition and added that the two suits were not only res judicata but the application before her was also not defended as according to her there was no affidavit in reply. In her ruling, the learned Judge set out five issues for determination. These were:-
“1. Is the suit herein res judicata whereby the plaint should be struck out as disclosing no cause of action?
2. Does the court have jurisdiction to entertain this suit which seeks relief already given by another court of competent jurisdiction wherein the decree issued is still in force?
3. Is the application properly before the court and have the plaintiff on a balance of probabilities proved the grounds on which it is made.
4. Do the respondents arguments in defence to the application constitute reasonable defences which would on the balance of probabilities warrant the court to disallow the application and retain the plaint.”
Having set out those questions as above, the learned Judge proceeded to answer them and she answered the main question thus:-
“That this matter is res judicata is clearly demonstrated by the existence of previous rulings of this Honourable Court wherein the defence of res judicata has been upheld. The rulings made by Justice Ombija J. on 25th February, 2002 and 24th January, 2003 were so made in applications brought by the respondents firstly seeking to strike out the defence and secondly to review the dismissal of that application. The same position was inferred in Justice Githinji’s order of 14th May, 2002 in which the decree in RMCC 15 of 1991 was upheld.
The plaintiff/respondent has not appealed against the above orders and the same remain in force. It was also not specifically defended the application before us and the issue therefore remains unattacked.”
The order of the Resident Magistrate at Narok was made in respect of trespass that took place prior to the date of that order namely 25th November 1991. It was to restrain defendants Shompole Group Ranch and its officers who are parties in HCCC No. 145 of 2001 from trespassing on to the appellant’s land. It also punished the same respondents by way of a fine for that offence of trespass prior to 25th November, 1991. It never gave any orders against Ol Kiramatian Group Ranch and its officials and never heard any case involving the same parties. The plaint in respect of HCCC No. 145 of 2001, alleges at paragraph 6 we have reproduced hereabove, that Shompole Group Ranch on divers days in the months of August and September 2000 trespassed on to the same land. One wonders whether after the trespass before 25th November, 1991, the subject matter of the RMCC No. 15 of 1991, the group left the subject land or not. That may not be necessary when one is dealing with an application under Order 6 rule 13 (1) (a) where one is as per Jiraj’s case (supra) confined to the pleading only. Whatever happened, the trespass in the year 2000 appears from the plaint to have been a different trespass from the one in 1991. We have perused the work of Clerk and Lindsel on Torts 16th Edition paragraph 23-01. It states:-
“Every continuance of a trespass is a fresh trespass in respect of which a new cause of action arises from day to day as long as the trespass continues.”
It is in our mind not a frivolous issue as to whether the trespass pleaded as having taken place in the year 2000 was covered by the trespass in 1991 which was restrained. It is also not an idle question as to whether the orders made against Shompole Group Ranch and its officials would be successfully executed against Ol Kiramatian Group Ranch and/or its officials who were not parties to that suit. Further and in any event after the consolidation, the suit assumed a different dimension in that parties who were not involved in RMCC No. 15 of 1991 were now sued. Could the orders in matters in which they were not parties be cited to defeat their suit and to drive them away from the seat of judgment? We doubt it.
In our view, Ombija J. had the right approach to the entire issue before him. Unfortunately, both counsel and the learned Judge (Mugo J.) do not appear to have understood the gist of his ruling. What was before him was an application to strike out the defence as being scandalous, frivolous, vexatious and as a pleading that would prejudice embarrass and delay the fair trial of the action or being otherwise an abuse of the process of the court. Apparently he was alive to the principles that would be applied when considering such a matter. He was also alive to Madan JA’s decision in the D.T. Dobie case (supra) and being so aware, he felt that the defence of res judicata raised was a matter that was worth pursuing at a full hearing and so he declined to strike out the defence. In our view, in his stating that the defence of res judicata was available, he was not saying that it must succeed. All we understand him to have said is that that defence was there and was worth being heard whether in the end it succeeded or not. In short, like Madan JA proposed, Ombija J. was not driving away the defendants from the seat of justice on grounds that the defendants had raised the defence of res judicata and they needed a chance to pursue it at a full hearing. It is unfortunate that the learned Judge of the superior court (Mugo J.) treated Ombija J’s approach as a final decision on the matter which it was not.
We think that the question as to whether the ruling in RMCC No. 15 of 1991 rendered the allegation of trespass in year 2000 res judicata and the question as to whether the orders of injunction issued against Shompole Group Ranch in respect of trespass in 1991 would be executed against them successfully in respect of fresh trespass as alleged in the plaint in the year 2000 is a matter that needs full hearing. Again the question as to whether the injunction order not made against Ol Kiramatian Group Ranch and its officials would be executed successfully against them is indeed a matter that must be subjected to full trial. In short, whether the doctrine of res judicata as provided for in section 7 of the Civil Procedure Act applies in this suit is a matter that could only be fully investigated at a full hearing and not in the manner the learned Judge of the superior court dealt with it which was by way of summary dismissal of the plaint without a hearing.
Before we allow the appeal on the above grounds as we must do, we do agree with Mr. Gross that indeed the application was defended by way of a replying affidavit and the learned Judge apparently was aware of that and she referred to it in apart of the ruling. It would appear that her holding that the application was not defended represented an oversight. We however, do feel that aspect was neither here nor there as the matter was to be decided purely on the pleadings before the court. As to the preliminary objection, on grounds that the respondent should not have been heard as they were in contempt, our view is that that objection was raised too late in the hearing of the application. In any case, the court has the discretion as to whether or not to hear a contemnor. In the case of Hadkison v. Hadkison (1952) 2 All ER 567 Denning L.J. stated at page 575:-
“I am of the opinion that the fact that a party to a cause has disobeyed an order of the court is not of itself a bar to his being heard, but if his disobedience is such that, so long as it continues it impedes the cause of justice by making it more difficult for the court to ascertain the truth or to enforce orders which it may make, then, the court may in its discretion refuse to hear him until the impediment is removed or good reason is shown why it should not be removed.”
The learned Judge had the discretion to hear or not to hear the respondents. She went on to hear them and we can understand the situation, as the objection was raised too late at the time of hearing although Notice of it may have been filed and served earlier on. However, we think the learned Judge should have recorded her decision in rejecting the objection. She was clearly in error in failing to do so.
We think we have said enough. This appeal must be allowed. It is allowed. The respondents shall pay the costs of the appeal and of the application before the superior court to the appellants. Let the matter proceed to full hearing before any Judge of the superior court except Ombija and Mugo JJ. Judgment accordingly.
Dated and delivered at Nairobi this 9th day of March, 2007.
E. O. O’KUBASU
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JUDGE OF APPEAL
P. N. WAKI
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JUDGE OF APPEAL
J. W. ONYANGO OTIENO
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JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR