[1] Before the Court for determination is the respondent’s undated Notice of Preliminary Objection filed herein on 9th October 2023. It premised on the grounds that:
[a] This Court is divested of jurisdiction by dint of the provisions of Sections 7 and 8 of the Civil Procedure Act, Chapter 21 of the Laws of Kenya, since the claims in the present suit have already been determined in Mombasa High Court Civil Case No. 106 of 2018 (O.S) and are therefore res judicata.
[b] The Petition is scandalous, instituted as an afterthought and abuse of the process of the court.
[2] Accordingly, the respondents prayed that the Petition be struck out with costs.
[3] Preliminary Objection was canvassed by way of written submissions, pursuant to the directions of the Court given on 30th January 2024. It is noteworthy that in their written submissions, the respondents purported to provide the factual background of their arguments. This they did in great detail at paragraphs 1 to 7, 13 to 31 of their written submissions, which are inexplicably dated 7th December 2023. It is therefore that only two paragraph of the respondents’ written submissions are devoted to what would appear to be legal arguments.
[4] The respondents relied on the case of Musankishay Kalala Pauline v Director of Criminal Investigations & 4 others [2022] eKLR and urged for the striking out of the Petition. The petitioners on their part proposed two issues for determination in their written submissions dated 25th February 2024, namely:
[a] Whether the respondents’ Preliminary Objection to the Petition meets the legal threshold; and
[b] What order ought to issue on costs.
[5] The petitioners relied on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 and Independent Electoral and Boundaries Commission v Jane Cheperenger & 2 others [2015] eKLR as to the nature and purpose of a preliminary objection. As to the ingredients of res judicata, the petitioners placed reliance on Christopher Kenyariri v Salama Beach [2017] eKLR as well as Secretary of State for Health & Social Care and the NHS Business Services Authority v Servier Laboratories Ltd and others and urged the Court to find that the respondents’ Preliminary Objection is an outright abuse of the court process. They also urged the Court to note that the entire Preliminary Objection is hinged on facts that have to be proved; including the decision of the court in Mombasa High Court Civil Case No. 106 of 2018.
[6] As for costs, the petitioners submitted that upon dismissal of the Preliminary Objection, costs ought to be awarded to them. They relied on two authorities, including Morgan Air Cargo Limited v Everest Enterprises Limited [2014] eKLR.
[7] What amounts to a preliminary objection was discussed in the Mukisa Biscuits Manufacturing Ltd case in which it was held:
“…a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by a contract giving rise to the suit to refer the dispute to arbitration”.
[8] Similarly, in Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 Others (supra), the Supreme Court pointed out that:
“[21] …The true Preliminary Objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection—against profligate deployment of time and other resources. And secondly, it serves the public cause, of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement. It is distinctly improper for a party to resort to the Preliminary Objection as a sword, for winning a case otherwise destined to be resolved judicially, and on the merits.”
[9] In the premises, the single issue for determination is whether the respondents’ Preliminary Objection raised is tenable. It is essentially an objection to the Court’s jurisdiction on the basis of res judicata and is therefore a valid issue for consideration as a preliminary objection. In the case of The Owners of Motor vessel Lillian ‘S’ v Caltex Kenya Limited [1989] KLR 1, the court held: -
“Jurisdiction is everything. Without it, a Court has no power to make one more step. Where a Court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A Court of Law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”
[10] There is no gainsaying that res judicata is a plea that goes to the court's jurisdiction, and which, if successfully raised, has the potential of disposing of an entire suit. Section 7 of the Civil Procedure Act, provides:
“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”
[11] Nevertheless, not every re judicata situation lends itself to consideration by way of preliminary objection. This is especially the case where there is a dispute as to whether or not the issues arising in the subsequent suit are the same issues that arose in the previous suit; in which case further investigation or proof by way of documentary or other evidence may be necessary. In this instance, reference has been made to the judgment delivered in the previous suit. The Court would have to investigate and ascertain the contents thereof to determine whether indeed it concerned the same issues and whether the issues were determined on merit with finality.
[12] More importantly, the respondents have, by way of their written submissions made extensive reference to factual details. That is an improper approach; and I say so for at least two reasons. Firstly, written submissions have their special place and cannot take the form of evidence. This was made clear by the Court of Appeal in Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi [2014] eKLR thus:
“…Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed, there are many cases decided without hearing submissions but based only on evidence presented…”
[13] Secondly, it is now trite that where a preliminary objection is entire premises on contested facts, then it ceases to be one. In Oraro v Mbaja [2005] 1 KLR 141 it was held:
"...The principle is abundantly clear. A "preliminary objection" correctly understood, is now well defined as, and declared to be, a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion, which claims to be a preliminary objection, yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed...Where a court needs to investigate facts, a matter cannot be raised as a preliminary point...Anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence..."
[14] Even assuming that there was a valid legal ground to sustain the Preliminary Objection, sight cannot be lost of the fact that an Originating Summons may raise issues that present a totally different nuance from the allegations of violations of rights in a Constitutional Petition such as this. In particular, the petitioners have alleged violations of Articles 2(4), 27(1), (2), (3), 43(1) (a) (c) and 53(1)(c) (d).
[15] In John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others (Petition 17 of 2015) [2021] KESC 39 (KLR) (Civ) (6 August 2021) (Judgment), the Supreme Court found that, although the issues raised in a Judicial Review application filed before the High Court were based on the same facts, the Constitutional Petition raised additional issues beyond those addressed in the judicial review application. The court held:
“97.From the face of it, it would appear that the issues in the present suit and JR 130 of 2011 are directly and substantially the same. However the appellants herein predicated their petition on inter alia grounds that the bilateral agreement should have been approved by Parliament in order to form part of Kenyan law and in failing to do so, the respondents contravened article 2. They further alleged that the respondents herein purported to usurp to the role of Parliament and in doing so contravened articles 94(5) and (6) of the Constitution. They further alleged that the FERI and COD certificates threatened to infringe their right to property under articles 40(1)(a) and (2)(a) when the respondents threatened to arbitrarily deprive them of their property. The court sitting in determination of a judicial review application did not have jurisdiction to render itself on these issues. We therefore find that the principle of res judicata was wrongly invoked on this ground…
…
108. We arrive at the inescapable conclusion that the High Court in determining a judicial review application, exercises only a fraction the jurisdiction it has to determine a constitutional petition. It therefore follows that a determination of a judicial review application cannot be termed as final determination of issues under a constitutional petition. The considerations are different, the orders the court may grant are more expanded under a constitutional petition and therefore the outcomes are different.
109.The court in hearing a constitutional petition may very well arrive at the same conclusion as the court hearing a judicial review application. However, the considerations right from the outset are different, the procedures are different, the reliefs that the court may grant are different, the court will be playing fairly different roles.
110. We consequently arrive at the conclusion that the Court of Appeal erred in holding that the doctrine of res judicata applied to the current case. The Court of Appeal should have at that point found that the High Court was wrong in its conclusion.
[16] For the foregoing reasons, it is my resultant finding the respondents’ Preliminary Objection was improperly taken and must be deprecated. In doing so, I reiterate the words of Sir Charles Newbold, P. in the Mukisa Biscuits Manufacturing Ltd case that:
“a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and on occasion, confuse the issue, and this improper practice should stop”.
[17] In sum, the respondents’ Preliminary Objection filed on 9th October 2023 is hereby dismissed. Each party to bear own costs thereof.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 31ST DAY OF OCTOBER 2024