REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAROK
HC CIVIL CASE NO. E007 OF 2024
(CORAM: HON. CHARLES KARIUKI – J)
MASAAI MARA UNIVERSITY …...………………1ST PLAINTIFF/RESPONDENT
MASAAI MARA COUNCIL UNIVERSITY………2ND PLAINTIFF/RESPONDENT
VERSUS
PROF. MARY KHAKONI WALINGO...........................DEFENDANT/APPLICANT
RULING
1. The Defendant/Applicant seeks to strike out the plaint based on the facts on grounds on the face of the application and the supporting affidavit of Professor Mary Khakoni Walingo sworn on 2/9/2024.
2. The application is opposed via affidavit of Dr. Kenndy Ole Keru sworn on 30/10/2024. Parties were directed to file submissions to canvas the application.
3. Background
4. The Defendant herein is the former Vice Chancellor of the 1st Plaintiff and whose tenure came to an end on 24th September 2023 having served in the institution for two terms each of five (5) years.
5. The Plaintiffs herein, after the said tenure came to an end undertook an audit and it became apparent that during the second term for the Defendant herein a substantial amount of money was lost and could not be accounted for and the said monies were allegedly received and/or taken by the Defendant herein hence necessitating the filing of this suit.
6. The Defendant herein has filed the instant application on the basis that due to the fact that criminal proceedings against her were terminated then the instant cause of action pegged on what plaintiff call the doctrine of unjust enrichment cannot be sustained.
7. The Defendant further alleges that the cause of action is time barred since the criminal charges related to alleged acts done in 2019 but the plaintiffs contend that the instant suit is pegged on the full term of the Defendant, and which only came to an end on 24the September, 2023 and as such time is yet to lapse since it was barely an year down the line.
8. APPLICANT SUBMISSIONS
9. The Applicant’s Argument
10. The present suit for reasons that the same is res judicata: it is time barred: it is a suit in respect of which the Respondents lack locus standi; the court lacks jurisdiction to hear and determine the suit; and that the same amounts to an abuse of the court process; and that the same ought to be struck out with costs to the Applicant. The Applicant submits on the following head:
11. The present suit contravenes the doctrine of res judicata.
12. Section 7 of the Civil Procedure Act provides that: -
“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.
13. In the seminal case of John Florence Maritime Services Limited & Another Vs. Cabinet Secretary Transport & Infrastructure & 3 Others (Petition 17 of 2015) [2021] KESC 39 (KLR) (Civ) (6 August 2021) (Judgment), the supreme Court stated the following on res judicata:
14. For res judicata to be invoked in a civil matter the following elements had to be demonstrated:
I. There was a former judgment or order which was final.
II. The judgment or order was on merit.
15. The judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and
16. There had to be between the first and the second action identical parties, subject matter and cause of action (Emphasis added).
17. The Supreme Court further in communications Commission of Kenya & 5 Others VS. Royal Medial Services Limited & 5 Others [2014] eKLR stated the following on the applicability of the doctrine of res judicata:
[319] There are conditions to the application of the doctrine of res judicata: (i) the issue in the first suit must have been decided by a competent court; (ii) the matter in dispute in the former suit between the parties must be directly or substantially in dispute between the parties in the suit where the doctrine is pleaded as a bar; and (iii) the parties in the former suit should be the same parties, or parties under whom they or any of them claim, litigating under the same title Karia and Another Vs. The Attorney General and Others, [2005] 1 EA 83, 89. (Emphasis added).
18. It is old that res judicata is first matter of fact before it becomes a matter of law. It is the Applicant’s submission that the present suit is res judicata.
19. First, the substance of the present suit being the misappropriation of funds at the 1st Respondent which was directly and substantially in issue in the criminal proceedings in Nakuru Anti-corruption case No. E002 of 2020 (Republic Vs. Professor Mary Khakoni Walingo & 4 Others) where the Applicant was charged with among others, conspiracy to commit the offence of corruption under Section 47(3) and Section 48 of the Anti-corruption and Economic Crimes Act. (A copy of the charge sheet is marked as MKW.2).
20. The Applicant successfully challenged the criminal proceedings before the High Court at Nakuru in High Court Constitutional Petition No. E028 of 2022: Professor Mary Khakoni Walingo Vs. DCI & 5 Others. (A copy of the Petition is marked as MKW. 3).
21. Honourable Justice Chemitei in a judgment delivered on 21st March, 2024 (the said judgment) quashed the criminal proceedings against the Applicant and barred investigations and prosecution of the Applicant in connection with the charges contained in the impugned charge sheet. (A copy of the said judgment is marked as MKW. 4). The prosecution made a nolle prosequi application, which application was successfully challenged by the Applicant and the matter marked as closed. (The decision dismissing the nolle prosequi application is marked as MKW-7).
22. Second, the Respondents herein were parties to the said proceedings at the High Court and they actively opposed the Applicant’s Petition. As such, the judgment and the orders of court are binding on the Respondents. The said judgment and orders have not been challenged, and they are therefore the final orders of court.
23. From the foregoing, it is clear that there is a former judgment in proceedings which the Applicant and the Respondents were parties whereon a final order which has not been challenged was made. The High Court in Nakuru had the requisite jurisdiction over the subject matter and the parties. The issues raised in the present suit were substantial issues in the proceedings at the High Court. Allowing the Respondents to reopen matters which have been determined by a court of competent jurisdiction offends the doctrine of res judicata.
24. The present suit is time barred
25. Section 4(2) of the Limitations of Actions Act provides that: An action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued.
26. Section 26 of the Act provides for the extension of the Limitation period in the case of fraud. It provides specifically that in actions of fraud, the limitation period does not begin to run until the Plaintiff has discovered the fraud.
27. It therefore follows that an action of fraud cannot be brought 3 years after the discovery of the alleged fraud.
28. It is the Applicant’s humble submission that the present suit is time barred. The Respondents in their plaint plead that the alleged fraud was discovered in or around September 2019. The present suit was instituted on 19th August, 2024, more than 3 years after the discovery of the alleged fraud. As such, the present suit is time barred and the same should be struck out.
29. The Respondents lack the locus standi to bring the present suit.
30. The Black’s Law Dictionary defines locus standi as ‘the right to bring an action or to be heard in a given forum.’
31. In the case of Alfred Njau & Others Vs. City Council of Nairobi (1982) KAR 229, the court defined locus standi as follows: -
The term locus standi means a right to appear in court and conversely to say that a person has no locus standi means that he has no right to appear or be heard in such and such proceedings.
(Emphasis added).
32. Section 55 of the Anti-corruption and Economic Crimes Act provides that the process of forfeiture of unexplained assets is a function of the Ethics and Anti-corruption Commission (EACC). The process falls within the realm of criminal law and should be instituted after an investigation which shows that a person may be in possession of unexplained assets.
33. The Applicant submits that the Respondents do not have the locus standi to bring the present suit. In the present suit, the Respondents are seeking among others, an order of forfeiture.
34. Under the Anti-corruption and Economic Crimes Act, the process of forfeiture is a function of the EACC, to be performed after a complaint has been filed, investigations conducted and concluded. The Act does not give a right to complainants should lodge a formal complaint for the EACC to conduct investigations and institute the forfeiture process. As such, the Respondents lack the locus standi to institute and maintain the present suit.
35. This Honorable Court does not have the jurisdiction to hear and determine the present suit.
36. The Court of Appeal in the seminal case of Owners of the Motor Vessel “Lillian S’ Vs. Caltex Oil (Kenya) Ltd. [1989] KECA 48 (KLR) stated the following on jurisdiction:
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 down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.
37. Under Section 55 of the Anti-corruption and Economic Crimes Act, the process of forfeiture shall be instituted upon completion of investigations by the EACC. This process falls within the realm of criminal law. As such, the court clothed with the requisite jurisdiction to hear this matter is the anti-corruption and economic crimes court. The process of forfeiture should be instituted in the proper court by the EACC and in accordance with the procedure under Section 55 of the Act.
38. The present suit is an abuse of court process
39. Order 2, Rule 15 of the Civil Procedure Act provides that a pleading may be struck out if it is scandalous, frivolous or vexatious; and if it is an abuse of the process of court.
40. In the case of County Council of Nandi Vs. Ezekiel Kibet Rutto & 6 Others (2013) eKLR, the court stated the following on pleadings which are scandalous, frivolous, vexatious or amount to an abuse of court process:
A scandalous pleading in my view is a pleading that attempts to put the other party into bad light. It attempts disparage the other party to the proceedings. Such pleadings border on defamation….
A frivolous pleading in my view is a pleading that completely lacks a legal foundation. It is a pleading that discloses no cause of action and serves no purpose at all……
A vexatious pleading in my view is a pleading whose only purpose is to annoy or irritate the other party to the suit…. Its main quality is that it stands out as a pleading only aimed at harassing the other party.
A pleading that is an abuse of the process of court in my view encompasses…situations where a litigant is using the process of court in the wrong way, not for purposes of agitating a right, but for other extraneous reasons.
41. RESPONDENT’S SUBMISSIONS
42. The Defendant herein is the former Vice Chancellor of the 1st Plaintiff and whose tenure came to an end on 24th September 2023 having served in the institution for two terms each of five (5) years.
43. The Plaintiffs herein after the said tenure came to an end undertook an audit and it became apparent that during the second term for the Defendant herein a lot of money was lost and could not be accounted for and the said monies were received and/or taken by the Defendant herein hence necessitating the filing of this suit.
44. The Defendant herein does not dispute the said facts but has filed the instant application on the basis that due to the fact that criminal proceedings against her were terminated then the instant cause of action pegged on the doctrine of unjust enrichment cannot be sustained.
45. The Defendant further alleges that the cause of action is time barred since the criminal charges related to alleged acts done in 2019 but the instant suit is pegged on the full term of the Defendant, and which only came to an end on 24the September, 2023 and as such time is yet to lapse since it was barely an year down the line.
46. The instant application is thus not supported by facts and most of the issues raised therein remain disputed and requires scrutiny and which will only be possible in a full trial and where all issues and facts shall be tested through cross-examination and a true account of the events determined on merits. It is thus only fair that this application is declined and the suit heard on its merits in a full trial.
47. Whether the suit is an abuse of court process
48. Order 2 Rule 15 of the Civil Procedure Act provides that pleadings may be struck out if they are scandalous, frivolous, vexatious and/or amount to an abuse of court process.
49. That striking out of pleadings is a draconian act and should be sparingly used and only as a last resort where the court notes that the said case is hopeless and there is no chance of the same being given any breath even through amendment.
50. In the case of D.T. Dobie & Company Kenya Limited Vs. Joseph Mbaria Muchina & Another (1980) eKLR, Madan JA, stated:
“The court ought to act very cautiously and carefully and consider all facts of the case without embarking upon a trial thereof, before dismissing a case for not disclosing a reasonable cause of action or being otherwise an abuse of the process of the court.
A court of justice should aim at sustaining a suit rather than terminating it by summary dismissal. Normally a law suit is for pursuing it. No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action, and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it.(Emphasis mine)
51. See also the cases of the Co-operative Merchant Bank Ltd. Vs. George Fredrick Wekesa (Civil Appeal No. 54 of 1999) and In Yaya Towers Limited Vs. Trade Bank Limited (In liquidation) (Civil Appeal No. 35 of 2000).
“It is trite law that a defense can only be struck out in the clearest of the cases where the defense looks hopeless and no life can be breathed into it. Further that courts of law should endeavor to sustain suits than striking them out…...”
52. The Court of Appeal in the case of Blue Shield Insurance Company Ltd Vs. Joseph Mboya Oguttu (2009) eKLR established that striking out of pleadings is a drastic remedy that should only be resorted to where pleadings are a complete sham. Similarly, in the case of Crescent Construction Co. Ltd. Vs. Dephis Bank Ltd. (2007) eKLR.
“However, one thin remains clear, and that is that the power to strike out a pleading is a discretionary one. It is to be exercised with the greatest care and caution. This comes from the realization that the rules of natural justice require that the court must not drive away any litigant, however weak his case may be from the seat of justice. This is a time-honored legal principle. At the same time, it is unfair to drag a person to the seat of justice when the case purportedly brought against him is a non-starter”
Whether this suit is res judicata?
53. The Doctrine of res judicata is provided by Section 7 of the Civil Procedure Act. The section reads as follows: -
“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.”
54. Explanation – (3) The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
55. The Court of Appeal in interpreting this doctrine of res judicata in John Florence Maritime Services Limited & Another Vs. Cabinet Secretary for Transport and Infrastructure & 3 Others (2015) eKLR stated as follows: -
“From the above, the ingredients of res judicata are firstly, that the issue in dispute in the former suit between the parties must be directly or substantially be in dispute between the parties in the suit where the doctrine is pleaded as a bar. Secondly, that the former suit should be the same parties, or parties under whom they or any of them claim, litigating under the same title and lastly that the court or tribunal before which the former suit was litigated was competent and determined the suit finally…...”
56. The instant suit is properly before this Court, it relates to a civil matter, involves different parties, different cause of action, based on facts that occurred after the determination of the former suit and arose after the lapse of the tenure of the Defendant sometime on or around 24th September, 2023 and this therefore shows that this is a suit totally different from the former criminal matter.
57. Where this suit is time barred?
58. The cause of action is one pegged on the doctrine of unjust enrichment and noting that the Defendant’s tenure only came to an end on 24/9/2023 then time had not lapsed since it was barely a year later when the instant suit was filed.
59. The Defendant/Applicant is alleging and which allegation is misplaced that the time began running from the year 2019 when the issues of misappropriation of funds were first raised but that is far from the truth. The Defendant continued being an employee and the Vice Chancellor of the 1st Plaintiff up until the 24/9/2023 and time began running from the said date when her tenure came to an end.
60. The Plaintiffs/Applicants herein submit that the cause of action for unjust enrichment crystalized upon lapse of the tenure of the Defendant/Applicant and this is because before then he Applicant maintained a suspension account and which was only closed after her tenure and it was at this stage that it was realized that the Defendant had unjust enriched herself at the expense of the 1st Plaintiff/Respondent herein.
61. Whether the Plaintiffs herein have requisite locus standi?
62. In the case of Law Society of Kenya VS. Commissioner of Lands & Others, Nakuru High Court Civil Case No. 464 of 2000.
63. The Plaintiffs herein are entitled a right to be heard and they indeed have interest in this matter and thus can sustain a standing in this matter and especially noting the cause of action is pegged on the doctrine of unjust enrichment.
64. In the case of Joel Mwangangi Kithure Vs. Priscah Mukorimburi (2022) KEELC 1490 (KLR) the learned Judge explained in detail the doctrine of unjust enrichment and the said doctrine is clearly applicable in the instant case. The learned Judge stated and held as follows:
“This court is alive to the doctrine of unjust enrichment. The Respondent would clearly be enriching herself unjustly by retaining the land and the money paid to her by the Appellant. Broadly founded upon the aim of equity to do justice between parties, the doctrine of unjust enrichment and the remedy of restitution to counter unjust benefit proceed upon the realization that to allow a Defendant to retain such a benefit would result in his/her being unjustly enriched at the Plaintiff’s expense, and this, subject to certain defined limits, will not be tolerated by the law, and owing to the importance and aim of this doctrine in every advanced and civilized system of justice. This was the emphatic language of Madan, JA (as he then was) in the case of Chase International Investment Corporation and Another Vs. Laxman Keshra and Others (1978) KLR 143 at page 154 where it was firmly and unequivocally laid down that in Kenya, a claim may properly be founded for restitution where it would be unjust to allow a party to retain the benefits of an unjust enrichment. The learned Judge stated inter alia:
“Woe unto the day when it is lost sight in Kenya, which would also be contrary to the spirit of Section 3(c) of the Judicature Act. I trust that in future, in appropriate cases, there will be less smothering of just equitable rights on the basis of technical objections and artificial distinctions oblivious to justice and substance.”
65. In the case of SAMUEL KAMAU MACHARIA VS. KENYA COMMERCIAL BANK LIMITED, KENYA COMMERCIAL FINANCE COMPANY LIMITED [2003] KEHC 725 (KLR) the Learned Judge in expounding on the basis and/or foundation of the doctrine of unjust enrichment held and stated as follows:
“Forming the foundation of quasi-contractual claims, such as actions for money hand and received, and for money paid to a third party from which the defendant has derived a benefit, and equitable relief from undue influence and catching bargains, amongst other restitutionary claims, the idea of unjust enrichment or unjust benefit is intended to prevent a person from retaining money or some benefit derived from another which it is against conscience that he should keep it, and he should, in justice, restore it to the Plaintiff. The gist is that a Defendant, upon the circumstances of the case is obliged by the ties of natural justice and equity to make restitution.
66. The 1st Plaintiff and as such was greatly aggrieved by the Defendant by unjustly enriching herself at the expense of the 1st Plaintiff.The 1st and 2nd Plaintiff are thus entitled to be heard and have a serious take in these proceedings. They therefore cannot be said to be without locus standi.
67. The Defendant in her application seems to suggest that the only person with locus standi to file this suit is the EACC but it is contended that as ably demonstrated herein above the cause of action in this suit is pegged on the doctrine of unjust enrichment and the Plaintiffs herein can bring this case on their behalf without having to first make a complaint to the EACC.
68. It is further worth noting that Article 22 of the Constitution of Kenya, 2010, has since enlarged the right to be heard and on the persons who can approach court and this goes to buttress the fact that the Plaintiffs herein indeed do have the requisite locus standing to institute the instant suit.
69. From all the foregoing, it is crystal clear that the Plaintiffs/Respondents herein have the requisite locus standi to prosecute his suit and for the same to be determined on merits.
70. The Defendant herein seems to have made up her own case based on the proceeds of Crime and Anti money laundering Act and failed to read the pleadings filed by the Plaintiffs herein and whose case is purely pegged on the celebrated doctrine of unjust enrichment. The plaint makes no mention of the aforesaid Act and had the Plaintiff wished to rely on the same then they would have expressly pleaded the same.
71. As captured under paragraph 31 of the plaint, the instant suit is pegged on the doctrine of unjust enrichment and the same is properly brought by the Plaintiffs herein as the entity which suffered and lost the money at the expense of the Defendant who unjustly benefited.
i. Firstly, the instant suit is not res judicata, it is also not time barred and further this court has jurisdiction to entertain this suit.
ii. Secondly, the Plaintiffs have demonstrated that the instant suit is pegged on the doctrine of unjust enrichment and the same thus ought to be heard on merits.
iii. The Plaintiffs have showed and demonstrated that they have locus standi and as such this matter ought to be expedited and fixed for main hearing where all issues shall be heard and determined on merits and with finality.
72. From all the foregoing, the application in its entirety is devoid of any merit. The Applicant has failed to prove on a balance of probability the allegations made therein and the same thus ought to be dismissed and matter set down for hearing.
73. Issues, analysis and determination
74. After going through parties’ pleadings, affidavits and submissions, I find the issues are;
I. Whether the present suit contravenes the doctrine of res judicata.
II. Whether the present suit is time barred.
III. Whether this Court has the jurisdiction to hear and determine the present suit.
IV. Whether the present suit is an abuse of court process.
V. Whether the Plaintiffs herein have requisite locus standi?
75. Whether the present suit contrives the doctrine of res judicata.
76. In Kenyan civil law, the doctrine of res judicata, meaning "the thing has been decided," prevents parties from re litigating issues that have already been decided by a court of competent jurisdiction in a prior suit. It ensures finality and prevents parties from repeatedly raising the same claims.
77. Key aspects of res judicata in Kenya:
• Finality of Judgments:
• Once a judgment has been rendered by a court of competent jurisdiction and is no longer subject to appeal, it is considered final and binding.
• Prevention of Re litigating:
• Res judicata bars parties from raising the same issues in subsequent proceedings between the same parties or those claiming under them.
• Identical Issues and Parties:
78. See section 7 of the CPR Cap 21 LOK., John Florence Maritime Services Limited & Another Vs. Cabinet Secretary for Transport and Infrastructure & 3 Others (2015) eKLR and John Florence Maritime Services Limited & Another Vs. Cabinet Secretary for Transport and Infrastructure & 3 Others (2015) eKLR.
79. For res judicata to apply, the issues in both suits must be identical, the parties must be the same or litigating under the same title, and the previous case must have been decided by a court of competent jurisdiction.
80. The instant suit relates to a civil matter, involves different parties, different cause of action, based on facts that occurred after the determination of the former suit as pleaded arose after the lapse of the tenure of the Defendant sometime on or around 24th September 2023 and this therefore shows that this is a suit totally different from the former criminal matter. In any case the criminal case did not determine in finality the state of the amount sought to be recovered in the instant suit.
81. Whether the present suit is time barred.
82. The defendant contend that Section 4(2) of the Limitations of Actions Act provides that: An action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued. Whereas the plaintiffs contend that the cause of action is one pegged on the doctrine of unjust enrichment and noting that the Defendant’s tenure only came to an end on 24/9/2023 then time had not lapsed since it was barely a year later when the instant suit was filed. That, the cause of action for unjust enrichment crystalized upon lapse of the tenure of the Defendant/Applicant and this is because before then the Applicant maintained a suspension account and which was only closed after her tenure and it was at this stage that it was realized that the Defendant had unjust enriched herself at the expense of the 1st Plaintiff/Respondent herein.
83. There is no common ground as to the time the cause of action if any arose thus only evidence can shed light in the circumstances,
84. Whether this Court has the jurisdiction to hear and determine the present suit.
85. The defendant argues that, Under Section 55 of the Anti-corruption and Economic Crimes Act, the process of forfeiture shall be instituted upon completion of investigations by the EACC. This process falls within the realm of criminal law. As such, the court clothed with the requisite jurisdiction to hear this matter is the anti-corruption and economic crimes court. The process of forfeiture should be instituted in the proper court by the EACC and in accordance with the procedure under Section 55 of the Act.
86. He plaintiffs contend that the cause of action is one pegged on the doctrine of unjust enrichment. That the Defendant had unjustly enriched herself at the expense of the 1st Plaintiff/Respondent herein.
87. Article 165((3) COK,2010, Subject to clause (5), the High Court shall have--
88. (a) unlimited original jurisdiction in criminal and civil matters;
(b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened.
89. In Kenya, the doctrine of unjust enrichment, which is a legal principle ensuring fairness, prevents one party from benefiting unfairly at the expense of another. It essentially mandates that if someone receives a benefit without a just basis, they must return that benefit, or its equivalent, to the rightful owner. This doctrine is recognized and applied in Kenyan law, particularly in cases where there's a lack of contractual or tortious basis for the enrichment.
90. Key Elements of Unjust Enrichment:
I. Enrichment: The defendant has been enriched by the benefit.
II. At the Expense of the Plaintiff: This enrichment has occurred at the expense of the plaintiff.
III. Unjust or Unfair Enrichment: The enrichment is considered unjust or unfair.
91. Application and Examples:
Mistaken Payments:
i. If someone mistakenly overpays for goods or services, the recipient must return the over payment un
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IN THE HIGH COURT OF KENYA AT NAROK
HC CIVIL CASE NO. E007 OF 2024
(CORAM: HON. CHARLES KARIUKI – J)
MASAAI MARA UNIVERSITY …...………………1ST PLAINTIFF/RESPONDENT
MASAAI MARA COUNCIL UNIVERSITY………2ND PLAINTIFF/RESPONDENT
VERSUS
PROF. MARY KHAKONI WALINGO...........................DEFENDANT/APPLICANT
RULING
1. The Defendant/Applicant seeks to strike out the plaint based on the facts on grounds on the face of the application and the supporting affidavit of Professor Mary Khakoni Walingo sworn on 2/9/2024.
2. The application is opposed via affidavit of Dr. Kenndy Ole Keru sworn on 30/10/2024. Parties were directed to file submissions to canvas the application.
3. Background
4. The Defendant herein is the former Vice Chancellor of the 1st Plaintiff and whose tenure came to an end on 24th September 2023 having served in the institution for two terms each of five (5) years.
5. The Plaintiffs herein, after the said tenure came to an end undertook an audit and it became apparent that during the second term for the Defendant herein a substantial amount of money was lost and could not be accounted for and the said monies were allegedly received and/or taken by the Defendant herein hence necessitating the filing of this suit.
6. The Defendant herein has filed the instant application on the basis that due to the fact that criminal proceedings against her were terminated then the instant cause of action pegged on what plaintiff call the doctrine of unjust enrichment cannot be sustained.
7. The Defendant further alleges that the cause of action is time barred since the criminal charges related to alleged acts done in 2019 but the plaintiffs contend that the instant suit is pegged on the full term of the Defendant, and which only came to an end on 24the September, 2023 and as such time is yet to lapse since it was barely an year down the line.
8. APPLICANT SUBMISSIONS
9. The Applicant’s Argument
10. The present suit for reasons that the same is res judicata: it is time barred: it is a suit in respect of which the Respondents lack locus standi; the court lacks jurisdiction to hear and determine the suit; and that the same amounts to an abuse of the court process; and that the same ought to be struck out with costs to the Applicant. The Applicant submits on the following head:
11. The present suit contravenes the doctrine of res judicata.
12. Section 7 of the Civil Procedure Act provides that: -
“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.
13. In the seminal case of John Florence Maritime Services Limited & Another Vs. Cabinet Secretary Transport & Infrastructure & 3 Others (Petition 17 of 2015) [2021] KESC 39 (KLR) (Civ) (6 August 2021) (Judgment), the supreme Court stated the following on res judicata:
14. For res judicata to be invoked in a civil matter the following elements had to be demonstrated:
I. There was a former judgment or order which was final.
II. The judgment or order was on merit.
15. The judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and
16. There had to be between the first and the second action identical parties, subject matter and cause of action (Emphasis added).
17. The Supreme Court further in communications Commission of Kenya & 5 Others VS. Royal Medial Services Limited & 5 Others [2014] eKLR stated the following on the applicability of the doctrine of res judicata:
[319] There are conditions to the application of the doctrine of res judicata: (i) the issue in the first suit must have been decided by a competent court; (ii) the matter in dispute in the former suit between the parties must be directly or substantially in dispute between the parties in the suit where the doctrine is pleaded as a bar; and (iii) the parties in the former suit should be the same parties, or parties under whom they or any of them claim, litigating under the same title Karia and Another Vs. The Attorney General and Others, [2005] 1 EA 83, 89. (Emphasis added).
18. It is old that res judicata is first matter of fact before it becomes a matter of law. It is the Applicant’s submission that the present suit is res judicata.
19. First, the substance of the present suit being the misappropriation of funds at the 1st Respondent which was directly and substantially in issue in the criminal proceedings in Nakuru Anti-corruption case No. E002 of 2020 (Republic Vs. Professor Mary Khakoni Walingo & 4 Others) where the Applicant was charged with among others, conspiracy to commit the offence of corruption under Section 47(3) and Section 48 of the Anti-corruption and Economic Crimes Act. (A copy of the charge sheet is marked as MKW.2).
20. The Applicant successfully challenged the criminal proceedings before the High Court at Nakuru in High Court Constitutional Petition No. E028 of 2022: Professor Mary Khakoni Walingo Vs. DCI & 5 Others. (A copy of the Petition is marked as MKW. 3).
21. Honourable Justice Chemitei in a judgment delivered on 21st March, 2024 (the said judgment) quashed the criminal proceedings against the Applicant and barred investigations and prosecution of the Applicant in connection with the charges contained in the impugned charge sheet. (A copy of the said judgment is marked as MKW. 4). The prosecution made a nolle prosequi application, which application was successfully challenged by the Applicant and the matter marked as closed. (The decision dismissing the nolle prosequi application is marked as MKW-7).
22. Second, the Respondents herein were parties to the said proceedings at the High Court and they actively opposed the Applicant’s Petition. As such, the judgment and the orders of court are binding on the Respondents. The said judgment and orders have not been challenged, and they are therefore the final orders of court.
23. From the foregoing, it is clear that there is a former judgment in proceedings which the Applicant and the Respondents were parties whereon a final order which has not been challenged was made. The High Court in Nakuru had the requisite jurisdiction over the subject matter and the parties. The issues raised in the present suit were substantial issues in the proceedings at the High Court. Allowing the Respondents to reopen matters which have been determined by a court of competent jurisdiction offends the doctrine of res judicata.
24. The present suit is time barred
25. Section 4(2) of the Limitations of Actions Act provides that: An action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued.
26. Section 26 of the Act provides for the extension of the Limitation period in the case of fraud. It provides specifically that in actions of fraud, the limitation period does not begin to run until the Plaintiff has discovered the fraud.
27. It therefore follows that an action of fraud cannot be brought 3 years after the discovery of the alleged fraud.
28. It is the Applicant’s humble submission that the present suit is time barred. The Respondents in their plaint plead that the alleged fraud was discovered in or around September 2019. The present suit was instituted on 19th August, 2024, more than 3 years after the discovery of the alleged fraud. As such, the present suit is time barred and the same should be struck out.
29. The Respondents lack the locus standi to bring the present suit.
30. The Black’s Law Dictionary defines locus standi as ‘the right to bring an action or to be heard in a given forum.’
31. In the case of Alfred Njau & Others Vs. City Council of Nairobi (1982) KAR 229, the court defined locus standi as follows: -
The term locus standi means a right to appear in court and conversely to say that a person has no locus standi means that he has no right to appear or be heard in such and such proceedings.
(Emphasis added).
32. Section 55 of the Anti-corruption and Economic Crimes Act provides that the process of forfeiture of unexplained assets is a function of the Ethics and Anti-corruption Commission (EACC). The process falls within the realm of criminal law and should be instituted after an investigation which shows that a person may be in possession of unexplained assets.
33. The Applicant submits that the Respondents do not have the locus standi to bring the present suit. In the present suit, the Respondents are seeking among others, an order of forfeiture.
34. Under the Anti-corruption and Economic Crimes Act, the process of forfeiture is a function of the EACC, to be performed after a complaint has been filed, investigations conducted and concluded. The Act does not give a right to complainants should lodge a formal complaint for the EACC to conduct investigations and institute the forfeiture process. As such, the Respondents lack the locus standi to institute and maintain the present suit.
35. This Honorable Court does not have the jurisdiction to hear and determine the present suit.
36. The Court of Appeal in the seminal case of Owners of the Motor Vessel “Lillian S’ Vs. Caltex Oil (Kenya) Ltd. [1989] KECA 48 (KLR) stated the following on jurisdiction:
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 down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.
37. Under Section 55 of the Anti-corruption and Economic Crimes Act, the process of forfeiture shall be instituted upon completion of investigations by the EACC. This process falls within the realm of criminal law. As such, the court clothed with the requisite jurisdiction to hear this matter is the anti-corruption and economic crimes court. The process of forfeiture should be instituted in the proper court by the EACC and in accordance with the procedure under Section 55 of the Act.
38. The present suit is an abuse of court process
39. Order 2, Rule 15 of the Civil Procedure Act provides that a pleading may be struck out if it is scandalous, frivolous or vexatious; and if it is an abuse of the process of court.
40. In the case of County Council of Nandi Vs. Ezekiel Kibet Rutto & 6 Others (2013) eKLR, the court stated the following on pleadings which are scandalous, frivolous, vexatious or amount to an abuse of court process:
A scandalous pleading in my view is a pleading that attempts to put the other party into bad light. It attempts disparage the other party to the proceedings. Such pleadings border on defamation….
A frivolous pleading in my view is a pleading that completely lacks a legal foundation. It is a pleading that discloses no cause of action and serves no purpose at all……
A vexatious pleading in my view is a pleading whose only purpose is to annoy or irritate the other party to the suit…. Its main quality is that it stands out as a pleading only aimed at harassing the other party.
A pleading that is an abuse of the process of court in my view encompasses…situations where a litigant is using the process of court in the wrong way, not for purposes of agitating a right, but for other extraneous reasons.
41. RESPONDENT’S SUBMISSIONS
42. The Defendant herein is the former Vice Chancellor of the 1st Plaintiff and whose tenure came to an end on 24th September 2023 having served in the institution for two terms each of five (5) years.
43. The Plaintiffs herein after the said tenure came to an end undertook an audit and it became apparent that during the second term for the Defendant herein a lot of money was lost and could not be accounted for and the said monies were received and/or taken by the Defendant herein hence necessitating the filing of this suit.
44. The Defendant herein does not dispute the said facts but has filed the instant application on the basis that due to the fact that criminal proceedings against her were terminated then the instant cause of action pegged on the doctrine of unjust enrichment cannot be sustained.
45. The Defendant further alleges that the cause of action is time barred since the criminal charges related to alleged acts done in 2019 but the instant suit is pegged on the full term of the Defendant, and which only came to an end on 24the September, 2023 and as such time is yet to lapse since it was barely an year down the line.
46. The instant application is thus not supported by facts and most of the issues raised therein remain disputed and requires scrutiny and which will only be possible in a full trial and where all issues and facts shall be tested through cross-examination and a true account of the events determined on merits. It is thus only fair that this application is declined and the suit heard on its merits in a full trial.
47. Whether the suit is an abuse of court process
48. Order 2 Rule 15 of the Civil Procedure Act provides that pleadings may be struck out if they are scandalous, frivolous, vexatious and/or amount to an abuse of court process.
49. That striking out of pleadings is a draconian act and should be sparingly used and only as a last resort where the court notes that the said case is hopeless and there is no chance of the same being given any breath even through amendment.
50. In the case of D.T. Dobie & Company Kenya Limited Vs. Joseph Mbaria Muchina & Another (1980) eKLR, Madan JA, stated:
“The court ought to act very cautiously and carefully and consider all facts of the case without embarking upon a trial thereof, before dismissing a case for not disclosing a reasonable cause of action or being otherwise an abuse of the process of the court.
A court of justice should aim at sustaining a suit rather than terminating it by summary dismissal. Normally a law suit is for pursuing it. No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action, and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it.(Emphasis mine)
51. See also the cases of the Co-operative Merchant Bank Ltd. Vs. George Fredrick Wekesa (Civil Appeal No. 54 of 1999) and In Yaya Towers Limited Vs. Trade Bank Limited (In liquidation) (Civil Appeal No. 35 of 2000).
“It is trite law that a defense can only be struck out in the clearest of the cases where the defense looks hopeless and no life can be breathed into it. Further that courts of law should endeavor to sustain suits than striking them out…...”
52. The Court of Appeal in the case of Blue Shield Insurance Company Ltd Vs. Joseph Mboya Oguttu (2009) eKLR established that striking out of pleadings is a drastic remedy that should only be resorted to where pleadings are a complete sham. Similarly, in the case of Crescent Construction Co. Ltd. Vs. Dephis Bank Ltd. (2007) eKLR.
“However, one thin remains clear, and that is that the power to strike out a pleading is a discretionary one. It is to be exercised with the greatest care and caution. This comes from the realization that the rules of natural justice require that the court must not drive away any litigant, however weak his case may be from the seat of justice. This is a time-honored legal principle. At the same time, it is unfair to drag a person to the seat of justice when the case purportedly brought against him is a non-starter”
Whether this suit is res judicata?
53. The Doctrine of res judicata is provided by Section 7 of the Civil Procedure Act. The section reads as follows: -
“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.”
54. Explanation – (3) The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
55. The Court of Appeal in interpreting this doctrine of res judicata in John Florence Maritime Services Limited & Another Vs. Cabinet Secretary for Transport and Infrastructure & 3 Others (2015) eKLR stated as follows: -
“From the above, the ingredients of res judicata are firstly, that the issue in dispute in the former suit between the parties must be directly or substantially be in dispute between the parties in the suit where the doctrine is pleaded as a bar. Secondly, that the former suit should be the same parties, or parties under whom they or any of them claim, litigating under the same title and lastly that the court or tribunal before which the former suit was litigated was competent and determined the suit finally…...”
56. The instant suit is properly before this Court, it relates to a civil matter, involves different parties, different cause of action, based on facts that occurred after the determination of the former suit and arose after the lapse of the tenure of the Defendant sometime on or around 24th September, 2023 and this therefore shows that this is a suit totally different from the former criminal matter.
57. Where this suit is time barred?
58. The cause of action is one pegged on the doctrine of unjust enrichment and noting that the Defendant’s tenure only came to an end on 24/9/2023 then time had not lapsed since it was barely a year later when the instant suit was filed.
59. The Defendant/Applicant is alleging and which allegation is misplaced that the time began running from the year 2019 when the issues of misappropriation of funds were first raised but that is far from the truth. The Defendant continued being an employee and the Vice Chancellor of the 1st Plaintiff up until the 24/9/2023 and time began running from the said date when her tenure came to an end.
60. The Plaintiffs/Applicants herein submit that the cause of action for unjust enrichment crystalized upon lapse of the tenure of the Defendant/Applicant and this is because before then he Applicant maintained a suspension account and which was only closed after her tenure and it was at this stage that it was realized that the Defendant had unjust enriched herself at the expense of the 1st Plaintiff/Respondent herein.
61. Whether the Plaintiffs herein have requisite locus standi?
62. In the case of Law Society of Kenya VS. Commissioner of Lands & Others, Nakuru High Court Civil Case No. 464 of 2000.
63. The Plaintiffs herein are entitled a right to be heard and they indeed have interest in this matter and thus can sustain a standing in this matter and especially noting the cause of action is pegged on the doctrine of unjust enrichment.
64. In the case of Joel Mwangangi Kithure Vs. Priscah Mukorimburi (2022) KEELC 1490 (KLR) the learned Judge explained in detail the doctrine of unjust enrichment and the said doctrine is clearly applicable in the instant case. The learned Judge stated and held as follows:
“This court is alive to the doctrine of unjust enrichment. The Respondent would clearly be enriching herself unjustly by retaining the land and the money paid to her by the Appellant. Broadly founded upon the aim of equity to do justice between parties, the doctrine of unjust enrichment and the remedy of restitution to counter unjust benefit proceed upon the realization that to allow a Defendant to retain such a benefit would result in his/her being unjustly enriched at the Plaintiff’s expense, and this, subject to certain defined limits, will not be tolerated by the law, and owing to the importance and aim of this doctrine in every advanced and civilized system of justice. This was the emphatic language of Madan, JA (as he then was) in the case of Chase International Investment Corporation and Another Vs. Laxman Keshra and Others (1978) KLR 143 at page 154 where it was firmly and unequivocally laid down that in Kenya, a claim may properly be founded for restitution where it would be unjust to allow a party to retain the benefits of an unjust enrichment. The learned Judge stated inter alia:
“Woe unto the day when it is lost sight in Kenya, which would also be contrary to the spirit of Section 3(c) of the Judicature Act. I trust that in future, in appropriate cases, there will be less smothering of just equitable rights on the basis of technical objections and artificial distinctions oblivious to justice and substance.”
65. In the case of SAMUEL KAMAU MACHARIA VS. KENYA COMMERCIAL BANK LIMITED, KENYA COMMERCIAL FINANCE COMPANY LIMITED [2003] KEHC 725 (KLR) the Learned Judge in expounding on the basis and/or foundation of the doctrine of unjust enrichment held and stated as follows:
“Forming the foundation of quasi-contractual claims, such as actions for money hand and received, and for money paid to a third party from which the defendant has derived a benefit, and equitable relief from undue influence and catching bargains, amongst other restitutionary claims, the idea of unjust enrichment or unjust benefit is intended to prevent a person from retaining money or some benefit derived from another which it is against conscience that he should keep it, and he should, in justice, restore it to the Plaintiff. The gist is that a Defendant, upon the circumstances of the case is obliged by the ties of natural justice and equity to make restitution.
66. The 1st Plaintiff and as such was greatly aggrieved by the Defendant by unjustly enriching herself at the expense of the 1st Plaintiff.The 1st and 2nd Plaintiff are thus entitled to be heard and have a serious take in these proceedings. They therefore cannot be said to be without locus standi.
67. The Defendant in her application seems to suggest that the only person with locus standi to file this suit is the EACC but it is contended that as ably demonstrated herein above the cause of action in this suit is pegged on the doctrine of unjust enrichment and the Plaintiffs herein can bring this case on their behalf without having to first make a complaint to the EACC.
68. It is further worth noting that Article 22 of the Constitution of Kenya, 2010, has since enlarged the right to be heard and on the persons who can approach court and this goes to buttress the fact that the Plaintiffs herein indeed do have the requisite locus standing to institute the instant suit.
69. From all the foregoing, it is crystal clear that the Plaintiffs/Respondents herein have the requisite locus standi to prosecute his suit and for the same to be determined on merits.
70. The Defendant herein seems to have made up her own case based on the proceeds of Crime and Anti money laundering Act and failed to read the pleadings filed by the Plaintiffs herein and whose case is purely pegged on the celebrated doctrine of unjust enrichment. The plaint makes no mention of the aforesaid Act and had the Plaintiff wished to rely on the same then they would have expressly pleaded the same.
71. As captured under paragraph 31 of the plaint, the instant suit is pegged on the doctrine of unjust enrichment and the same is properly brought by the Plaintiffs herein as the entity which suffered and lost the money at the expense of the Defendant who unjustly benefited.
i. Firstly, the instant suit is not res judicata, it is also not time barred and further this court has jurisdiction to entertain this suit.
ii. Secondly, the Plaintiffs have demonstrated that the instant suit is pegged on the doctrine of unjust enrichment and the same thus ought to be heard on merits.
iii. The Plaintiffs have showed and demonstrated that they have locus standi and as such this matter ought to be expedited and fixed for main hearing where all issues shall be heard and determined on merits and with finality.
72. From all the foregoing, the application in its entirety is devoid of any merit. The Applicant has failed to prove on a balance of probability the allegations made therein and the same thus ought to be dismissed and matter set down for hearing.
73. Issues, analysis and determination
74. After going through parties’ pleadings, affidavits and submissions, I find the issues are;
I. Whether the present suit contravenes the doctrine of res judicata.
II. Whether the present suit is time barred.
III. Whether this Court has the jurisdiction to hear and determine the present suit.
IV. Whether the present suit is an abuse of court process.
V. Whether the Plaintiffs herein have requisite locus standi?
75. Whether the present suit contrives the doctrine of res judicata.
76. In Kenyan civil law, the doctrine of res judicata, meaning "the thing has been decided," prevents parties from re litigating issues that have already been decided by a court of competent jurisdiction in a prior suit. It ensures finality and prevents parties from repeatedly raising the same claims.
77. Key aspects of res judicata in Kenya:
• Finality of Judgments:
• Once a judgment has been rendered by a court of competent jurisdiction and is no longer subject to appeal, it is considered final and binding.
• Prevention of Re litigating:
• Res judicata bars parties from raising the same issues in subsequent proceedings between the same parties or those claiming under them.
• Identical Issues and Parties:
78. See section 7 of the CPR Cap 21 LOK., John Florence Maritime Services Limited & Another Vs. Cabinet Secretary for Transport and Infrastructure & 3 Others (2015) eKLR and John Florence Maritime Services Limited & Another Vs. Cabinet Secretary for Transport and Infrastructure & 3 Others (2015) eKLR.
79. For res judicata to apply, the issues in both suits must be identical, the parties must be the same or litigating under the same title, and the previous case must have been decided by a court of competent jurisdiction.
80. The instant suit relates to a civil matter, involves different parties, different cause of action, based on facts that occurred after the determination of the former suit as pleaded arose after the lapse of the tenure of the Defendant sometime on or around 24th September 2023 and this therefore shows that this is a suit totally different from the former criminal matter. In any case the criminal case did not determine in finality the state of the amount sought to be recovered in the instant suit.
81. Whether the present suit is time barred.
82. The defendant contend that Section 4(2) of the Limitations of Actions Act provides that: An action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued. Whereas the plaintiffs contend that the cause of action is one pegged on the doctrine of unjust enrichment and noting that the Defendant’s tenure only came to an end on 24/9/2023 then time had not lapsed since it was barely a year later when the instant suit was filed. That, the cause of action for unjust enrichment crystalized upon lapse of the tenure of the Defendant/Applicant and this is because before then the Applicant maintained a suspension account and which was only closed after her tenure and it was at this stage that it was realized that the Defendant had unjust enriched herself at the expense of the 1st Plaintiff/Respondent herein.
83. There is no common ground as to the time the cause of action if any arose thus only evidence can shed light in the circumstances,
84. Whether this Court has the jurisdiction to hear and determine the present suit.
85. The defendant argues that, Under Section 55 of the Anti-corruption and Economic Crimes Act, the process of forfeiture shall be instituted upon completion of investigations by the EACC. This process falls within the realm of criminal law. As such, the court clothed with the requisite jurisdiction to hear this matter is the anti-corruption and economic crimes court. The process of forfeiture should be instituted in the proper court by the EACC and in accordance with the procedure under Section 55 of the Act.
86. He plaintiffs contend that the cause of action is one pegged on the doctrine of unjust enrichment. That the Defendant had unjustly enriched herself at the expense of the 1st Plaintiff/Respondent herein.
87. Article 165((3) COK,2010, Subject to clause (5), the High Court shall have--
88. (a) unlimited original jurisdiction in criminal and civil matters;
(b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened.
89. In Kenya, the doctrine of unjust enrichment, which is a legal principle ensuring fairness, prevents one party from benefiting unfairly at the expense of another. It essentially mandates that if someone receives a benefit without a just basis, they must return that benefit, or its equivalent, to the rightful owner. This doctrine is recognized and applied in Kenyan law, particularly in cases where there's a lack of contractual or tortious basis for the enrichment.
90. Key Elements of Unjust Enrichment:
I. Enrichment: The defendant has been enriched by the benefit.
II. At the Expense of the Plaintiff: This enrichment has occurred at the expense of the plaintiff.
III. Unjust or Unfair Enrichment: The enrichment is considered unjust or unfair.
91. Application and Examples:
Mistaken Payments:
i. If someone mistakenly overpays for goods or services, the recipient must return the over payment un
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