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Peter G N Nganga v. Harrison Maina Kariuki

(2007) JELR 94396 (CA)

Court of Appeal  •  Civil Appeal 294 of 2002  •  7 Jun 2007  •  Kenya

Coram
Riaga Samuel Cornelius Omolo, Philip Nyamu Waki, John walter Onyango Otieno

Judgement

JUDGMENT OF THE COURT

The orders of Mwera, J. dated 5th July, 2002 and against which Peter G.N. Nganga, the Appellant hereinafter, has brought this appeal were made upon a purported notice of motion brought by Harrison Maina Kariuki, the Respondent herein, pursuant to the provisions of Order 24 Rule 4 of the Civil Procedure Rules, section 3A of the Civil Procedure Act and “All other enabling provisions of the Law.” As far as we are concerned, only the provisions of Order 24 Rule 4 were relevant to the matter under consideration. That Rule provides that:-

“If any subsequent suit shall be brought before payment of the costs of the discontinued suit upon the same, or substantially the same, cause of action, the court may order a stay of such subsequent suit until such costs have been paid.”

It appears that the Appellant had previously filed H.C.C.C. No. 1037 of 2000 and that the Appellant had given a notice for the discontinuation of the said suit and the same had in fact been discontinued …

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