1. Before this court for determination is the Respondent’s Notice of Preliminary Objection dated 28th November, 2023 (herein below referred to as “the Objection”). The Preliminary Objection is based on the following grounds:
1) This Honourable Court lacks the requisite jurisdiction to hear and determine this matter.
2) The suit and the Application as filed is res judicata, the issues raised therein having been dealt with exhaustively and settled in the judgment delivered on 19th October 2023 in KIAMBU HIGH COURT CONSTITUTIONAL PETITION NO. E021 OF 2023: ROAD SAFETY ASSOCIATION OF KENYA SUING THROUGH DAVID KIARIE, CHAIRMAN versus GEORGE NJAO & THE BOARD OF DIRECTORS NATIONAL TRANSPORT AND SAFETY AUTHORITY. Copy of the said Judgment is attached.
3) The matter as filed is sub judice as the matters in issue as pleaded in the suit and Application herein are also directly and substantially in issue before this Honourable Court in Nairobi High Court Petition No. E041 of 2023; ROAD SAFETY ASSOCIATION OF KENYA -versus- THE NATIONAL TRANSPORT AND SAFETY AUTHORITY & 10 OTHERS, which matter is being actively litigated before the Constitutional Division of this Honourable Court and is between the same parties herein on the same issues.
4) All the issues raised in the matter herein are res-judicata as the same were also raised and determined in the Nairobi ELRC Petition No. E002 of 2023: EDWIN ODUOR WERE -VRS- BOARD OF DIRECTORS NATIONAL TRANSPORT AND SAFETY AUTHORITY & 2 OTHERS THE BOARD OF DIRECTORS. A copy of the Court's Ruling in the matter is attached.
5) The Application as filed is incompetent and fatally defective for want of a proper Respondent since the named Respondent is neither a body corporate nor a juridical person capable of being sued in its own name.
6) The Application as filed is incompetent and fatally defective for having been premised on documents procured and produced illegally and contrary to the express requirements of Section 80 of the Evidence Act, Articles 31, 35 and 50 of the Constitution as read together with Section 8 and 9 of the Access to information Act, 2016 (Act No. 31 of 2016).
7) The suit and the Application as filed are incompetent and fatally defective for want of compliance with the mandatory provision of Section 74 of the Public Service Commission Act No. 10 of 2017 as read together with Sections 8 and 9(2) of the Fair Administrative Action Act No. 4 of 2015.
8) The case and the Application as filed are frivolous, vexatious and an utter abuse of the process of this Honourable Court hence ought to be struck out and dismissed with costs to the Respondent.
2. The Respondent’s Notice of Preliminary Objection is a response to the Applicant’s Chamber Summons Application dated 19th October, 2023 that sought for the following orders:
1) THAT leave be granted to the applicant to apply for an order of prohibition directed to and prohibiting the Respondent from implementing its decision to reinstate the Director General made on the 4th of May, 2023.
2) THAT leave be granted to the applicant to apply for an order of certiorari to remove into the High Court and quash the following:
a) The Board’s decision on the 4th of May, 2023 recalling the Director General from annual compulsory leave without conducting investigations as promised to members of the Public.
b) The letter wrote to the Director General dated 4th of May, 2023 recalling him from annual leave.
3) THAT the leave granted to the Applicant to institute these Judicial Review proceedings shall operate as an order reinstating the Acting Director General one Mr. Cosmas Ngeso who was appointed by the board on acting capacity pending hearing and determination of substantive application or until further orders of this Honourable Court.
4) THAT the costs of this application be provided for.
3. By directions of this court, the objection was canvassed by way of written submissions. The Respondent’s written submissions, in support of the objection, are dated 2nd February, 2024; While the Applicant’s written submissions, opposing the objection, is dated 19th January, 2024. The Applicant also filed a Replying Affidavit dated 3rd January, 2024 sworn by David Kiarie.
Respondent’s Submissions
4. The Respondent, supporting the objection, as to sub-judice, submitted that the Applicant's Application dated 19th October, 2023 raises issues directly in issue with Nairobi High Court Petition No. E041 of 2023, thus amounting to sub-judice and abuse of the Court's process. Further, that the Respondent is included as a party in both suits, and in Petition No. E041, the Applicant opted to sue various Government ministries and offices together with the office holders.
5. It is contended that the legal principle that no court should proceed with the trial of a suit whose matter is also directly and substantially in issue in a previously instituted suit is well-enshrined in statutory law and judicial precedent. Reliance is placed on the Supreme court cases of Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (2020) eKLR, and In Re the Matter of the Interim Independent Electoral Commission Constitutional Application No. 2 of 2011 (2011) eKLR
6. It is posited that sub-judice is enshrined in Section 6 of the Civil Procedure Act, Chapter 21 of the Laws of Kenya. The Applicant's Application and Petition No. E041 are over the same subject matter, which is prohibiting the Respondent from reinstating its Director General. The subject matter for determination is the same, rendering the Applicant's Application vexatious and should be struck out with punitive costs. The case of David Ndii & others versus Attorney General & Others 2021 eKLR was relied upon.
7. As to Res Judicata, the Respondent argues that the Applicant's Application dated 19th October, 2023 is res-judicata, as the matter directly in issue was directly and substantially in issue, and was dealt with in Kiambu High Court Constitutional Petition No. E021of 2023: Road Safety Association Of Kenya Suing Through David Kiarie, Chairman Versus George Njao & The Board Of Directors National Transport And Safety Authority.
8. It is submitted that the court has determined that Section 7 of the Civil Procedure Act, Chapter 21 of the Laws of Kenya, enshrines the doctrine of res judicata for the fair administration of justice and promotion of the rule of law. The Applicant's Application satisfies all four (4) elements of res-judicata, as outlined by the Supreme Court in the case of John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others (Petition 17 of 2015) (2021] KESC 39 (KLR).
9. As per the Respondent, based on both substantive law and relevant case law from the Supreme Court, it is evident that the Application is res-judicata. The Respondent urges this Court to be guided by the Supreme Court's rationale in Speaker of the National Assembly & another v Senate & 12 others (Civil Appeal E084 of 2021) [2021] KECA 282 (eKLR).
10. On the locus of the Respondent to sue and be sued, the Respondent averred that the legal merits of the applicant's petition to prosecute the National Transport Safety Authority Board of Directors are contested, rendering the application futile. As a juridical entity, the Respondent is incapable of suing or being sued, rendering the application moot. Relied on the case of Maurice Ooko Otieno v Mater Misericcordiae Hospital [2004] eKLR.
11. The Applicant ought not to contend that the Respondent possesses a legal basis to initiate or defend a lawsuit in accordance with the National Transport and Safety Authority Act No. 33 of 2012. That, only the National Transport and Safety Authority, which was created in accordance with Section 3, may suit or be sued.
12. Therefore, the Respondent contends that the Applicant's Application was condemned from the moment it named the Respondent as a party, rendering it non-viable and unredeemable in the eyes of the Honourable Court. The case of Janto Construction Company Ltd v Enock Sikolia & 2 others [2020] KLR, was relied upon.
13. As to the Preliminary Objection raising pure points of lawn and the Respondent contends that the Applicant's Application concerns substantive legal issues that are pure issues that can be resolved in their entirety, such as res-judicata, sub judice, and locus standi.
14. Assuming that all of the facts presented by both sides are true, the Respondent's preliminary objection presents these straightforward legal issues. That the court should determine that the Respondent's arguments are strong enough to dismiss the Application as a whole since they are based on substantive law. Reliance is placed on the case of Mukisa Biscuits v West End Distributors Limited (1969) EA. 696.
15. In the end the Respondent beseeched this Honourable Court to dismiss with punitive costs the Applicant's Application dated 19th October, 2023; and grant the orders sought by the Respondent in its Preliminary objection dated 28th November, 2023.
Applicant’s Submissions
16. In opposing the Preliminary Objection, the Applicant submitted that the decision made on 4th May, 2023 has not been litigated and the cases cited by the Respondent do not touch on the decision. That the Kiambu Petition [Petition No. E163 of 2023] was filed to prevent the Director General from self-reappointing himself and did not seek to quash the decision.
17. The Judgment and ruling enclosed by the Respondent Applicant do not touch on the decision made on 4th May, 2023 which this current JR Cause is challenging. That the only commonality is the Ex-parte Applicant being the petitioner in the Kiambu Petition. The matter [Kiambu Petition No. E163 of 2023] was declared as overtaken by events as the Respondent recalled the Director General before the determination of the Petition, making it a moot matter.
18. The Applicant relied on the Supreme Court case of John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others [2021] eKLR where it was noted that the Court in hearing a constitutional petition may arrive at the same conclusion as the Court hearing a judicial review application.
19. According to the Applicant, the Petitions cited by the Respondent are different in substance from the current Judicial Review Application. In the end, the Applicant urges this Court to dismisses the Preliminary Objection dated 28th November, 2023 with cost, as it is now settled law that costs follow the event.
Issue(s) for Determination
20. After a careful consideration of the material before court: the Notice of Preliminary Objection, the written submissions by the learned counsel, and the annexures; I find the following issue that crystalizes for determination being: Whether the Respondent’s Notice of Preliminary Objection is merited in law.
Analysis and Determination
21. At first, it is imperative for this court to examine and determine whether the Respondent’s Notice of Preliminary Object satisfies the legal threshold of a Preliminary Objection in law. The Respondent has raised the preliminary objection on the grounds of jurisdiction, res judicata, and sub-judice.
22. The case of Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd [1969] EA 696. At page 700 Law JA stated;
“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 the contract giving rise to the suit to refer the dispute to arbitration."
At page 701 Sir Charles Newbold, P added:
“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is usually 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.”
23. The question that then begs is whether jurisdiction, res judicata, and/or sub-judice are pure points of law that ought to be raised by way of a Notice of a Preliminary Objection.
24. It is trite law that the issue of Jurisdiction is a pure point of law. This position was affirmed in the Supreme Courts case of Mary Wambui Munene v. Peter Gichuki Kingara and Six Others, Sup. Ct. Petition No. 7 of 2013; [2014] eKLR, where the court held
“…this Court held (at paragraphs 68 and 69) that the question of jurisdiction is a “pure question of law,” and should be resolved on a priority basis.”
25. Jurisdiction is everything, it is what gives a court or a tribunal the power, authority and legitimacy to entertain a matter before it. A decision made by a court of law without jurisdiction is a nullity ab initio, and such a decision is amenable to setting aside ex debito justitiae.
26. I am in this respect guided by the case of Owners of Motor Vessel “Lillian S” vs Caltex Oil (Kenya) Ltd (1989) KLR 1 where Justice Nyarangi JA (as he then was) held:
“I think it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. 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.”
The Court of Appeal proceeded to define jurisdiction and its source as follows:
“By jurisdiction is meant the authority which a court as to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given”
27. In Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, Application No 2 of 2011, the Supreme Court held as follows on jurisdiction:
“[68]. A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate itself jurisdiction exceeding that which is conferred upon it by law.”
28. A Court’s or tribunal’s jurisdiction therefore flows from either the Constitution or statute, or from principles laid out in judicial precedent. It is thus a pure question of law. The judicial review jurisdiction of this Court is in this respect granted by Articles 47 and 165(6) of the Constitution, particularly when any contravention and/or violation of constitutional and statutory provisions by a public body is alleged, or unfair action by an administrator is alleged.
29. In addition, Article 165 (6) of the Constitution in this regard provides that the High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function in this regard.
30. The Applicant sought for prerogative orders of prohibition and certiorari through their Chamber Summons dated 19th October, 2023. It is that Chamber Summon Application that elicited the response by the Respondent with the instant Notice of Preliminary Objection. On that premise, I find that this high court has jurisdiction to entertain and determine this matter pertaining to certiorari and prohibition.
31. As to the issue of raising res judicata by Notice of Preliminary Objection, I am in agreement and find guidance with the sentiments of court in the case of George Kamau Kimani & 4 Others Vs County Government of Trans Nzoia & Another (2014), eKLR, where the Court held that: -
“I have considered the points raised by the 1st Defendant. All those points can be argued in the normal manner. They do not qualify to be raised as Preliminary Points. One cannot raise a ground of res judicata by way of Preliminary Objection. The best way to raise a ground of res judicata is by way of Notice of Motion where pleadings are annexed to enable the court to determine whether the current suit is res judicata. …. This is not a proper way of issues which require ascertainment of facts by way of evidence. They cannot be brought by way of Preliminary Objection”. (Emphasis added)
32. On the issue of raising sub judice as a Preliminary Objection, I am in agreement with the observations of the court in the case of Margaret Wachu Karuri Vs John Waweru Ribiro (2021) eKLR, where the Court faced with the question whether sub-judice can be raised as a preliminary point, held as follows;
“For the Court to determine whether the issues herein were directly and substantially in issue with the other suit, it is this court’s considered view that it will have to ascertain facts and probe evidence by ascertaining whether the issues raised in the instant suit are the same as the ones in the Appeal aforesaid and further interrogate the prayers sought whether they are the same and relate to the same issues. On whether or not the same is sub-judice, facts have to be ascertained and a preliminary objection cannot be raised on disputed facts. Therefore, this court holds and finds what has been raised by defendant/objector does not amount to a preliminary objection, and thus the preliminary objection is not merited.
Consequently, the court finds and holds that the notice of preliminary objection dated 30th August, 2019, by the defendant/objector is not merited and the same is dismissed entirely with costs to the plaintiff/Respondent”. (Emphasis added)
33. From the above it is clear that for res judicata and sub-judice, this court has to ascertain facts raised by both counsel, as it is their word against each other. Where there are disputed facts to the existence of certain facts then the court must call for evidence to prove the same.
34. In this case, the facts are disputed and this court would be called upon to consider evidence by both parties; thus disqualifying it from being a pure point of law that can be raised by way of a Preliminary Objection.
35. In the end, having found that this court is vested with competent jurisdiction to hear and determine this matter; and having found that res judicata and sub-judice fail to anchor as grounds in a Preliminary Objection.
Order:
1. The Preliminary Objection dated 28th November, 2023 dismissed.
2. Cost shall be in the cause.
3. The matter shall be mentioned on 11.6.24 for further directions.
1) This Honourable Court lacks the requisite jurisdiction to hear and determine this matter.
2) The suit and the Application as filed is res judicata, the issues raised therein having been dealt with exhaustively and settled in the judgment delivered on 19th October 2023 in KIAMBU HIGH COURT CONSTITUTIONAL PETITION NO. E021 OF 2023: ROAD SAFETY ASSOCIATION OF KENYA SUING THROUGH DAVID KIARIE, CHAIRMAN versus GEORGE NJAO & THE BOARD OF DIRECTORS NATIONAL TRANSPORT AND SAFETY AUTHORITY. Copy of the said Judgment is attached.
3) The matter as filed is sub judice as the matters in issue as pleaded in the suit and Application herein are also directly and substantially in issue before this Honourable Court in Nairobi High Court Petition No. E041 of 2023; ROAD SAFETY ASSOCIATION OF KENYA -versus- THE NATIONAL TRANSPORT AND SAFETY AUTHORITY & 10 OTHERS, which matter is being actively litigated before the Constitutional Division of this Honourable Court and is between the same parties herein on the same issues.
4) All the issues raised in the matter herein are res-judicata as the same were also raised and determined in the Nairobi ELRC Petition No. E002 of 2023: EDWIN ODUOR WERE -VRS- BOARD OF DIRECTORS NATIONAL TRANSPORT AND SAFETY AUTHORITY & 2 OTHERS THE BOARD OF DIRECTORS. A copy of the Court's Ruling in the matter is attached.
5) The Application as filed is incompetent and fatally defective for want of a proper Respondent since the named Respondent is neither a body corporate nor a juridical person capable of being sued in its own name.
6) The Application as filed is incompetent and fatally defective for having been premised on documents procured and produced illegally and contrary to the express requirements of Section 80 of the Evidence Act, Articles 31, 35 and 50 of the Constitution as read together with Section 8 and 9 of the Access to information Act, 2016 (Act No. 31 of 2016).
7) The suit and the Application as filed are incompetent and fatally defective for want of compliance with the mandatory provision of Section 74 of the Public Service Commission Act No. 10 of 2017 as read together with Sections 8 and 9(2) of the Fair Administrative Action Act No. 4 of 2015.
8) The case and the Application as filed are frivolous, vexatious and an utter abuse of the process of this Honourable Court hence ought to be struck out and dismissed with costs to the Respondent.
2. The Respondent’s Notice of Preliminary Objection is a response to the Applicant’s Chamber Summons Application dated 19th October, 2023 that sought for the following orders:
1) THAT leave be granted to the applicant to apply for an order of prohibition directed to and prohibiting the Respondent from implementing its decision to reinstate the Director General made on the 4th of May, 2023.
2) THAT leave be granted to the applicant to apply for an order of certiorari to remove into the High Court and quash the following:
a) The Board’s decision on the 4th of May, 2023 recalling the Director General from annual compulsory leave without conducting investigations as promised to members of the Public.
b) The letter wrote to the Director General dated 4th of May, 2023 recalling him from annual leave.
3) THAT the leave granted to the Applicant to institute these Judicial Review proceedings shall operate as an order reinstating the Acting Director General one Mr. Cosmas Ngeso who was appointed by the board on acting capacity pending hearing and determination of substantive application or until further orders of this Honourable Court.
4) THAT the costs of this application be provided for.
3. By directions of this court, the objection was canvassed by way of written submissions. The Respondent’s written submissions, in support of the objection, are dated 2nd February, 2024; While the Applicant’s written submissions, opposing the objection, is dated 19th January, 2024. The Applicant also filed a Replying Affidavit dated 3rd January, 2024 sworn by David Kiarie.
Respondent’s Submissions
4. The Respondent, supporting the objection, as to sub-judice, submitted that the Applicant's Application dated 19th October, 2023 raises issues directly in issue with Nairobi High Court Petition No. E041 of 2023, thus amounting to sub-judice and abuse of the Court's process. Further, that the Respondent is included as a party in both suits, and in Petition No. E041, the Applicant opted to sue various Government ministries and offices together with the office holders.
5. It is contended that the legal principle that no court should proceed with the trial of a suit whose matter is also directly and substantially in issue in a previously instituted suit is well-enshrined in statutory law and judicial precedent. Reliance is placed on the Supreme court cases of Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (2020) eKLR, and In Re the Matter of the Interim Independent Electoral Commission Constitutional Application No. 2 of 2011 (2011) eKLR
6. It is posited that sub-judice is enshrined in Section 6 of the Civil Procedure Act, Chapter 21 of the Laws of Kenya. The Applicant's Application and Petition No. E041 are over the same subject matter, which is prohibiting the Respondent from reinstating its Director General. The subject matter for determination is the same, rendering the Applicant's Application vexatious and should be struck out with punitive costs. The case of David Ndii & others versus Attorney General & Others 2021 eKLR was relied upon.
7. As to Res Judicata, the Respondent argues that the Applicant's Application dated 19th October, 2023 is res-judicata, as the matter directly in issue was directly and substantially in issue, and was dealt with in Kiambu High Court Constitutional Petition No. E021of 2023: Road Safety Association Of Kenya Suing Through David Kiarie, Chairman Versus George Njao & The Board Of Directors National Transport And Safety Authority.
8. It is submitted that the court has determined that Section 7 of the Civil Procedure Act, Chapter 21 of the Laws of Kenya, enshrines the doctrine of res judicata for the fair administration of justice and promotion of the rule of law. The Applicant's Application satisfies all four (4) elements of res-judicata, as outlined by the Supreme Court in the case of John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others (Petition 17 of 2015) (2021] KESC 39 (KLR).
9. As per the Respondent, based on both substantive law and relevant case law from the Supreme Court, it is evident that the Application is res-judicata. The Respondent urges this Court to be guided by the Supreme Court's rationale in Speaker of the National Assembly & another v Senate & 12 others (Civil Appeal E084 of 2021) [2021] KECA 282 (eKLR).
10. On the locus of the Respondent to sue and be sued, the Respondent averred that the legal merits of the applicant's petition to prosecute the National Transport Safety Authority Board of Directors are contested, rendering the application futile. As a juridical entity, the Respondent is incapable of suing or being sued, rendering the application moot. Relied on the case of Maurice Ooko Otieno v Mater Misericcordiae Hospital [2004] eKLR.
11. The Applicant ought not to contend that the Respondent possesses a legal basis to initiate or defend a lawsuit in accordance with the National Transport and Safety Authority Act No. 33 of 2012. That, only the National Transport and Safety Authority, which was created in accordance with Section 3, may suit or be sued.
12. Therefore, the Respondent contends that the Applicant's Application was condemned from the moment it named the Respondent as a party, rendering it non-viable and unredeemable in the eyes of the Honourable Court. The case of Janto Construction Company Ltd v Enock Sikolia & 2 others [2020] KLR, was relied upon.
13. As to the Preliminary Objection raising pure points of lawn and the Respondent contends that the Applicant's Application concerns substantive legal issues that are pure issues that can be resolved in their entirety, such as res-judicata, sub judice, and locus standi.
14. Assuming that all of the facts presented by both sides are true, the Respondent's preliminary objection presents these straightforward legal issues. That the court should determine that the Respondent's arguments are strong enough to dismiss the Application as a whole since they are based on substantive law. Reliance is placed on the case of Mukisa Biscuits v West End Distributors Limited (1969) EA. 696.
15. In the end the Respondent beseeched this Honourable Court to dismiss with punitive costs the Applicant's Application dated 19th October, 2023; and grant the orders sought by the Respondent in its Preliminary objection dated 28th November, 2023.
Applicant’s Submissions
16. In opposing the Preliminary Objection, the Applicant submitted that the decision made on 4th May, 2023 has not been litigated and the cases cited by the Respondent do not touch on the decision. That the Kiambu Petition [Petition No. E163 of 2023] was filed to prevent the Director General from self-reappointing himself and did not seek to quash the decision.
17. The Judgment and ruling enclosed by the Respondent Applicant do not touch on the decision made on 4th May, 2023 which this current JR Cause is challenging. That the only commonality is the Ex-parte Applicant being the petitioner in the Kiambu Petition. The matter [Kiambu Petition No. E163 of 2023] was declared as overtaken by events as the Respondent recalled the Director General before the determination of the Petition, making it a moot matter.
18. The Applicant relied on the Supreme Court case of John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others [2021] eKLR where it was noted that the Court in hearing a constitutional petition may arrive at the same conclusion as the Court hearing a judicial review application.
19. According to the Applicant, the Petitions cited by the Respondent are different in substance from the current Judicial Review Application. In the end, the Applicant urges this Court to dismisses the Preliminary Objection dated 28th November, 2023 with cost, as it is now settled law that costs follow the event.
Issue(s) for Determination
20. After a careful consideration of the material before court: the Notice of Preliminary Objection, the written submissions by the learned counsel, and the annexures; I find the following issue that crystalizes for determination being: Whether the Respondent’s Notice of Preliminary Objection is merited in law.
Analysis and Determination
21. At first, it is imperative for this court to examine and determine whether the Respondent’s Notice of Preliminary Object satisfies the legal threshold of a Preliminary Objection in law. The Respondent has raised the preliminary objection on the grounds of jurisdiction, res judicata, and sub-judice.
22. The case of Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd [1969] EA 696. At page 700 Law JA stated;
“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 the contract giving rise to the suit to refer the dispute to arbitration."
At page 701 Sir Charles Newbold, P added:
“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is usually 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.”
23. The question that then begs is whether jurisdiction, res judicata, and/or sub-judice are pure points of law that ought to be raised by way of a Notice of a Preliminary Objection.
24. It is trite law that the issue of Jurisdiction is a pure point of law. This position was affirmed in the Supreme Courts case of Mary Wambui Munene v. Peter Gichuki Kingara and Six Others, Sup. Ct. Petition No. 7 of 2013; [2014] eKLR, where the court held
“…this Court held (at paragraphs 68 and 69) that the question of jurisdiction is a “pure question of law,” and should be resolved on a priority basis.”
25. Jurisdiction is everything, it is what gives a court or a tribunal the power, authority and legitimacy to entertain a matter before it. A decision made by a court of law without jurisdiction is a nullity ab initio, and such a decision is amenable to setting aside ex debito justitiae.
26. I am in this respect guided by the case of Owners of Motor Vessel “Lillian S” vs Caltex Oil (Kenya) Ltd (1989) KLR 1 where Justice Nyarangi JA (as he then was) held:
“I think it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. 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.”
The Court of Appeal proceeded to define jurisdiction and its source as follows:
“By jurisdiction is meant the authority which a court as to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given”
27. In Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, Application No 2 of 2011, the Supreme Court held as follows on jurisdiction:
“[68]. A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate itself jurisdiction exceeding that which is conferred upon it by law.”
28. A Court’s or tribunal’s jurisdiction therefore flows from either the Constitution or statute, or from principles laid out in judicial precedent. It is thus a pure question of law. The judicial review jurisdiction of this Court is in this respect granted by Articles 47 and 165(6) of the Constitution, particularly when any contravention and/or violation of constitutional and statutory provisions by a public body is alleged, or unfair action by an administrator is alleged.
29. In addition, Article 165 (6) of the Constitution in this regard provides that the High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function in this regard.
30. The Applicant sought for prerogative orders of prohibition and certiorari through their Chamber Summons dated 19th October, 2023. It is that Chamber Summon Application that elicited the response by the Respondent with the instant Notice of Preliminary Objection. On that premise, I find that this high court has jurisdiction to entertain and determine this matter pertaining to certiorari and prohibition.
31. As to the issue of raising res judicata by Notice of Preliminary Objection, I am in agreement and find guidance with the sentiments of court in the case of George Kamau Kimani & 4 Others Vs County Government of Trans Nzoia & Another (2014), eKLR, where the Court held that: -
“I have considered the points raised by the 1st Defendant. All those points can be argued in the normal manner. They do not qualify to be raised as Preliminary Points. One cannot raise a ground of res judicata by way of Preliminary Objection. The best way to raise a ground of res judicata is by way of Notice of Motion where pleadings are annexed to enable the court to determine whether the current suit is res judicata. …. This is not a proper way of issues which require ascertainment of facts by way of evidence. They cannot be brought by way of Preliminary Objection”. (Emphasis added)
32. On the issue of raising sub judice as a Preliminary Objection, I am in agreement with the observations of the court in the case of Margaret Wachu Karuri Vs John Waweru Ribiro (2021) eKLR, where the Court faced with the question whether sub-judice can be raised as a preliminary point, held as follows;
“For the Court to determine whether the issues herein were directly and substantially in issue with the other suit, it is this court’s considered view that it will have to ascertain facts and probe evidence by ascertaining whether the issues raised in the instant suit are the same as the ones in the Appeal aforesaid and further interrogate the prayers sought whether they are the same and relate to the same issues. On whether or not the same is sub-judice, facts have to be ascertained and a preliminary objection cannot be raised on disputed facts. Therefore, this court holds and finds what has been raised by defendant/objector does not amount to a preliminary objection, and thus the preliminary objection is not merited.
Consequently, the court finds and holds that the notice of preliminary objection dated 30th August, 2019, by the defendant/objector is not merited and the same is dismissed entirely with costs to the plaintiff/Respondent”. (Emphasis added)
33. From the above it is clear that for res judicata and sub-judice, this court has to ascertain facts raised by both counsel, as it is their word against each other. Where there are disputed facts to the existence of certain facts then the court must call for evidence to prove the same.
34. In this case, the facts are disputed and this court would be called upon to consider evidence by both parties; thus disqualifying it from being a pure point of law that can be raised by way of a Preliminary Objection.
35. In the end, having found that this court is vested with competent jurisdiction to hear and determine this matter; and having found that res judicata and sub-judice fail to anchor as grounds in a Preliminary Objection.
Order:
1. The Preliminary Objection dated 28th November, 2023 dismissed.
2. Cost shall be in the cause.
3. The matter shall be mentioned on 11.6.24 for further directions.