1.This is a ruling on oral application by counsel for the 1st Respondent that the Petition herein be transferred to Hon. Lady Justice Cherere for hearing and determination.
2.It is submitted by the 1st Respondent application that the order for transfer is necessary to avoid the prospect of two conflicting orders by different Judges of the same court over the same matter. It is said that there is a “likely contradictory orders of two courts” of equal jurisdiction.
3.Mr.Wanyama, Counsel for the 1st Respondent urged that Cherere, J. had in a ruling of 23/6/22 allowed an application for mandamus in Meru J.R No. 3 of 2021 seeking to enforce a judgment of the court (Otieno, J) in Misc. Application No. 1 of 2020 where the latter adopted as a Judgment of the Court a Arbitral Award in favour of the 1st Respondent. The decree in JR. no. 3 of 2021 is the subject of the Petition herein, according to counsel for the 1st Respondent. Counsel, therefore, concludes that “the court that has jurisdiction is Cherere, J for purposes of consistency and not to expose the court to ridicule by possibility of two decisions by two courts. The matter should be heard by the court that heard the matter sought to be reviewed, he urged.
4.For the 2nd-6th Respondents, Mr. Mbaabu submitted that the matters raised in the Petition are of constitutional nature revolving around the integrity of the 2nd-5th Respondents who were not parties to the previous judicial proceedings. Mr. Maranya, the second counsel for the petitioners urged that the matter before this court is different from what was before the Judicial Review Court (Cherere. J) and only the subject matter was the same, but the prayers sought were different. Counsel made a curious submission that:-
5.Mr. K. Mugambi, Counsel for the Petitioner, urged a difference between the two matters that:-
6.Upon perusing the Petition, herein it is clear that it is a challenge on decree of the court in Meru H.C. Misc. Application no. 1 of 2020 where by Order dated 18/6/2021 the court adopted the Arbitrator’s Award for payment of certain amount of money in aggregate award of Kshs 337,070,485 together with interest and costs, by the Respondent County Government of Meru to the 1st Respondent herein.
7.Seeking, among others, “an order of permanent injunction barring, restraining, stopping and or prohibiting the 2nd, 3rd , 4th and 5th Respondents acting on behalf of the 6th Respondent from processing payment for the benefit of the 1st Respondent the sums of money”, the Petition asserts that, and seeks a declaration in those terms, “that the 2nd , 3rd, 4th and 5th Respondents have failed to comply with and/or breached the provisions of the Constitution, Public Finance Management Act, Integrity Act, Public Procurement and Disposal Act in evicting the 1st Respondent from Leopard Rock Lodge, and this is gross violation of the law.”
8.There is, in the words of Counsel for the 1st Respondent, clear nexus between the previous proceedings and the present Petition in that the Petition challenges the decree arising from the arbitral award following the eviction of the 1st Respondent by the County Government, and seeking injunction against his payment of the arbitration award and order of the court in the previous proceeding and decree therefor extracted through judicial review proceedings for payment thereof.
9.The Petition is clearly in the nature of a review of the Judgment or orders of the court previously made. It is immaterial that officers and members of the County Government of Meru which was the defendant in the arbitration and subsequent proceedings are now Respondents in the Petition. It is the same matter of eviction and compensation by damages paid by the County Government.
10.The need to avoid the prospect of contradictory decisions of courts of the same jurisdiction over the same subject matter cannot be over-emphasized. It goes to the root of administration of justice, good order and confidence in the Judiciary.
11.Moreover, by analogy, the Rule is for review by the same court (Judge or Magistrate) where the particular Judge or Magistrate who made a determination which is sought to be reviewed, if the said Judge or Magistrate is still available at the court station. See Order 45 rule 2 (3) of the Civil Procedure Rules which provides as follows:-
12.As Cherere, J. is still available at Meru High Court, the Petition herein which seeks to challenge and, therefore, review the orders made by the Judge as to the payment of the decree following the judgment based on the arbitral award, should be heard by the Judge.
13.To state that the Judge has interacted with the matter before and, therefore, a fresh hearing before another court is necessary, as urged by Mr. Maranya, is to mount an appeal from the decision of the Judge before another court of equal status. This is not permissible. A party cannot validly obtain a different determination over a matter by a court of equal jurisdiction with the court that first heard the matter, except by way of review which must be heard by the different court only if the court that made the order is unavailable as provided under Order 45 Rule 2 of the Civil Procedure Rules.
14.Accordingly, for the reasons set out above the court directs that the Petition be placed before Cherere, J. for directions as to hearing on a date convenient to the Judge.