Kibia v Muigua & another

d). Any disposition of the suit property must have the consent of the Plainti otherwise the process is null and void ab initio and of no eect whatsoever; and e). There is real and present danger that unless stopped, the property will be sold by public auction, visiting great prejudice and loss to the children of the marriage and the Plainti. 3. In response to the Plainti`s application, Charles Karanja Kiiru (the 2nd Defendant) has led a Notice of Motion application dated 8th March 2023 urging this court to strike out the Plainti`s suit for being an abuse of the court process. 4. The second application is supported by an adavit sworn by the 2nd Defendant and is premised on the grounds that: i). The execution which the suit seeks to challenge emanates from a decree issued by the Chief Magistrates Court in Mombasa CMCC No. 1222 of 2014; Charles Karanja Kiiru – vs- Charles Githinji Muigua; ii). The decree was the subject of appeal in Mombasa HCCA No. 133 of 2014. On 4th February 2021, the Judgment of the Lower Court was set aside on conditions. If there was default in complying, the Judgment would be restored automatically; iii). The conditions were not complied with. All subsequent attempts at upsetting the Judgment have failed. The last attempt was dismissed vide a Ruling delivered on 20th January 2023; iv). If the Plainti has any complaints about the manner in which the decree is being executed, she could, by Section 34 of the Civil Procedure Act make that complaint in Mombasa CMCC No. 1222 of 2014; v). The Plainti can, if she wants, also take objection proceedings under Order 22 rule 52 of the Civil Procedure Rules 2010 in the Mombasa case; and vi). Given the foregoing, the Plainti`s suit is contra-statute and an abuse of the court process. It is meant to delay, as far as legal ingenuity can, the 2nd Defendant`s access to the fruits of the Judgment in his favour. 5. In response to the 2nd Defendant`s application, the Plainti in her short Replying Adavit led herein on 22nd March 2023 avers that she is not a party to the proceedings in the Mombasa cases and that she has led this suit to assert her title to the land as the spouse of the 1st Defendant. 6. I have carefully perused and considered the two applications as led by the Plainti as well as the 2nd Defendant together with the respective responses thereto. I have similarly perused and considered the submissions and authorities placed before me by the Learned Advocates representing the parties herein. 7. Before me for determination are two applications. The rst in time is the Motion dated 23rd February 2023 as brought by the Plainti seeking orders of injunction to restrain the two Defendants from dealing with, alienating, transferring or in any manner whatsoever interfering with her quite possession of the parcel of land known as Mweiga/Block 5/Muthuini/133 (the suit property). The second application dated 8th March 2023 has been instituted by the 2nd Defendant seeking to have the Plainti`s suit struck out for being an abuse of the court process. 8. Given its ramications, I will rst consider the second application as led by the 2nd Defendant. According to the 2nd Defendant, the Plainti by this suit seeks to challenge the execution process arising from a decree issued by the Chief Magistrates Court in Mombasa CMCC No. 1222 of 2014; Charles https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22464/eng@2023-12-20 2

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Karanja Kiiru – v-s Charles Githinji Muigua. It is the 2nd defendant`s case that if the Plainti has any complaint about the execution process her options were not to le another suit but to either make a complaint about the execution process to the same court pursuant to section 34 of the Civil Procedure Act or to le objection proceedings pursuant to Order 22 rule 52 of the Civil Procedure Rules. 9. On her part, the Plainti insists that there is no abuse of the court process as she is not a party to the proceedings before the court in Mombasa. The Plainti avers that she is the spouse of the 1st Defendant and that she has brought this suit to assert her title as the suit property is their matrimonial property. 10. As it were, at paragraph 4 to 8 of her Plaint dated and led on 23rd February 2023, the Plainti pleads as follows: “ 4. The 1st Defendant herein and the Plainti are husband and wife having lived together since 2005 and are blessed with three children namely……… 5. The suit property herein, that is to say Mweiga/Block 5/ Muthuini/1133 is the families (sic) matrimonial home having been acquired during the pendency of the said marriage; 6. The Plainti avers that a search at the Lands Oce in Nyeri has shown that there is an inhibition placed by the court in Mombasa Chief Magistrates Civil Suit No. 1222 of 2014 which is between the two Defendants; 7. Upon further inquiries she has learnt that the court in the said Mombasa Chief Magistrates Civil Suit No. 1222 of 2014 has prohibited the 1st Defendant from any attempts to sell or charge the suit property; and 8. She avers that the property is the only home that her children and herself have known as a family home during the pendency of the marriage. The Plainti has not been aware of the proceedings in Mombasa Chief Magistrates Civil Suit No. 1222 of 2014 and neither was I aware of the imminent threat to the property.” 11. Arising from the foregoing, it was apparent to me that the Plainti had prior to the ling of this suit become aware of the decree issued in the said Mombasa CMCC No.1222 of 2014 and that as can be discerned from annexture CKK2 of the 2nd Defendant’s Supporting Adavit, the same faces an imminent threat of being sold in execution of the decree. 12. That also informs the Plainti`s contention that any disposition of the suit property must always have her consent rst had and obtained. While that position may be so if the Plainti were to demonstrate that the suit property were matrimonial property, I did not think it was open for the Plainti to le a fresh suit. In that respect, Section 34 of the Civil Procedure Act provides as follows: “ All questions arising between the parties to the suit in which the decree was passed, or their representatives and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit.” 13. As was stated in Geoffrey Muriithi Murage & 2 Others –vs- Antony Oluoch t/a A. T. Oluoch & Company Advocates & 2 Others [2018] eKLR: “ …all matters relating to the execution, discharge or satisfaction of the decree or consent orders in issue shall be determined by the court executing the decree and not by a separate https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22464/eng@2023-12-20 3

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suit…..to the extent that the applications and the suits relate to and seek prayers with respect to satisfaction of the consent order, the court returns that the suits and the applications were misconceived and irreparably so.” 14. Indeed even where the Plainti were claiming a distinct and separate interest from that of her husband (the 1st Defendant) her only recourse in the circumstances was in Order 22 Rule 51 of the Civil Procedure Rules – which provides thus: “ Any person claiming to be entitled or to have a legal or equitable interest in the whole of or part of any property attached in execution of a decree may at any time prior to payment out of the proceeds of sale of such property give notice in writing to the court and to all the parties and the decree- holder of his objection to the attachment of such property.” 15. In the circumstance herein it was apparent that the case between the Plainti`s husband and the 2nd Defendant had been in the court for the past nine (9) years in both the subordinate and the High Court at Mombasa. Having learnt about the case and made inquiries as she states in her pleadings, it was dicult to nd a reason why the Plainti chose to travel all the way back to Nyeri to lay a claim that her matrimonial property was facing an imminent threat of disposition due to debts owed by her husband. 16. As the Court of Appeal stated in Kivanga Estates Ltd – vs- National Bank of Kenya Ltd [2017] eKLR: “ We entertain no doubt whatsoever that by engaging nearly all levels of the court system for the last 27 years, ling the suit in one court after the other, moving from Embu, Meru to Nairobi, amounts to gross abuse of the process of the court. …….. The court will look closely at the conduct of the party bringing subsequent proceedings in respect of the same matter in order to prevent abuse of its process and it has the power, in case of abuse of its process to ex debito justiciae prevent it. There is no greater duty for the court than to ensure that it maintains the integrity of the system of administration of justice and ensure that justice is not only done but is seen to be done by, amongst other measures, stopping litigations brought for ulterior and extraneous considerations. The courts, litigants and counsel are enjoined by both the Constitution and the law to assist the court to further the overriding objective for the just determination of the proceedings; the ecient disposal of the business of the court; the ecient use of the available judicial and administrative resources; the timely disposal of the proceedings, and all other proceedings in the court, at a cost aordable by the parties…” 17. In the circumstance herein, I was satised that his suit had been led in abuse of the court process after the 1st Defendant failed to meet the conditions of stay that were placed by the High Court in Mombasa. 18. Accordingly, I hereby allow the 2nd Defendant`s Notice of Motion dated 8th March 2023 and proceed to strike out the suit with costs to the 2nd Defendant. DATED, SIGNED AND DELIVERED AT NYERI THIS 20TH DAY OF DECEMBER, 2023. In the presence of: Ms. Cheruiyot holding brief for Kongere for the 2nd Defendant. No appearance for the Plainti. Court Assistant: Kendi. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22464/eng@2023-12-20 4

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………………… J. O. OLOLA JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22464/eng@2023-12-20 5

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