REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

1.    This is an industrial accident case. The employee/original plaintiff stated in the case before the subordinate court that he was working, on the material day of 16^th July 2005, as a machine operator. His case was to deal with plastic holders with a machine. He worked considerable long hours.

2.    On the material day, the machine developed a defect. It crushed his left index finger and caused him a fracture to the distal phalanx, left second finger.

3.    He then filed suit against his employer in damages.

4.    The employer filed defence and stated that the suit was bad in law. All other allegations were denied.

5.    It then transpired that an advocate known as M/s King’oo Njagi & co Advocate had filed suit CMCC 10149/06. Subsequently another advocate M/s Billy Amendi & Co Advocate filed another suit on 15^th February 2007. It was this second suit CMCC 13744/06 that was being presented and to which the defence was raised that the suit was bad in law.

6.    According to Order 7(e) of the Civil Procedure Rules there must be an averment in the plaint to state that there is no other suit that is pending the court.

7.    The Hon. Magistrate informed the defendant that this would be curable by its withdrawal.

8.    The Hon. Magistrate proceeded to pass award and as such found the employer (who called no witness) liable at 100% for the accident.

9.    The quantum on injury was assessed for general damages at Ksh. 80,000/= and special damages at Ksh. 2,000/=

10.     Being aggrieved, the employer appealed to this court on 10^th July 2008 by the memorandum of appeal dated 8^th July 2008. The appeal was admitted on 16^th March 2009 and directions taken on 24^th July 2009 (by Okwengu J.)

 II         APPEAL

11.      The memorandum of appeal being that the Hon. Magistrate erred in holding that the CMCC 13744/06 was a valid suit. It was in essence a nullity and ought to have been struck out.

 III             OPINION

 13.     Where these suits have been filed touching on the same subject matter, Section 6 of the Civil Procedure Act would come to play. The first is heard then the second suit is to be heard on the completion of the first.

14.     Noting there were two different advocates who filed suit, it is difficult to tell that the plaintiff was aware of the two suit. The first suit signature of the respondent/original plaintiff differs from the suit by Billy Amendi & Co Advocates.

15.     The court ought to have investigated the first suit as there appears not to have been genuine. This should not be visited upon the respondent/ original plaintiff.

16.     If per chance, the first suit was in order, this court is of the view that the appeal herein was filed out of time. Namely, on 8^th July 2008 when the decision was made on the 12^th March 2008. If per chance it was filed on time (which this court has no proof of), the issue in question of the plaint being contrary to law should be seen and taken with words of stating subject to fraud and or misrepresentation by another party not know to the said plaintiff.

17.     I would dismiss this suit as having been filed out of time. On the merits, I would not interfere with the liability and quantum of the court which in itself was not challenged.

18.     The respondent was absent during these proceedings. There would no costs awarded to him in this appeal. There will be costs to the original plaintiff in the suit.