South Nyanza Sugar Co. Ltd v Samson Omenge Moseti

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISII CIVIL APPEAL NO. 362 OF 2005 (Being an appeal from the judgment in the original Kilgoris SRMCC No. 641 of 2004 – Mr. Wilson Kaberia, RM) BETWEEN SOUTH NYANZA SUGAR CO. LTD................................................................................................................APPELLANT VERSUS SAMSON OMENGE MOSETI ......................................................................................................................RESPONDENT RULING The respondent’s application dated 15th January 2010 seeks striking out of this appeal for being a duplicity of Kisii HCCA No. 341 of 2005, South Nyanza Sugar Co. Ltd. –vs- Samson Omenge Moseti which the appellant had filed earlier. The respondent’s application was supported by an affidavit sworn by Don Z. Ogweno, the respondent’s advocate, to which is annexed a copy of the memorandum of appeal in respect of HCCA No. 341 of 2005. I have perused the two appeals and it is evident that they all arise from Kilgoris RMCC No. 64 of 2004, Samson Omenge Moseti –vs- South Nyanza Sugar Company Ltd. The two appeals are identical in every respect. Although the appellant’s advocate, Patrick J.O. Otieno, stated in his replying affidavit that the application was premature since directions had not been taken, given that the appellant filed two separate but identical appeals, the applicant’s contention that the second appeal is an abuse of the court process is insurmountable. Consequently, I allow the respondent’s application and hereby strike out this appeal. The appellant shall bear the costs of the appeal as well as of the application aforesaid.

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