APPLICATION
1 The Hon Attorney General the 4th Defendant and who represents the 2nd 3rd, 4th ,5th and 6th Defendants has filed the instant motion pursuant to the provisions of sections 1A,1B,3,3A of the civil procedure Act, Section 7 of the Civil Procedure Act, Order 51 Rule 1 of the Civil Procedure Rules 2010 and all other enabling provisions of the law. The Applicants seek for the following orders;
- That the plaint dated 4th April 2023 and filed in court on 27th April 2023 be struck out
- That the present suit as taken out, drawn and filed is incompetent, fatally defective and unsustainable in law or at all.
- That the honourable court lacks jurisdiction to hear this matter as the suit is res judicata as envisaged under Section 7 of the Civil Procedure Act in that the issue in this suit were directly and substantially in issue in ELC KWALE No 4 of 2021 formerly MOMBASA ELC 25 of 2015 SOCAF & COMPANY V JOHN MAINA NJOROGE between the same parties and which matter has been heard and finally decided by the said court.
- That costs of this application and of the suit be borne by the Plaintiff.
2 The application is set upon grounds listed on its face and which stated that;
- The Plaintiffs suit is res judicata and contrary to Section 7 of the Civil Procedure Act chapter 21 laws of Kenya
- The Plaintiff was Co-Defendants with the 3rd and 4th defendants in a previously concluded suit being ELC KWALE No 4 of 2021 formerly MOMBASA ELC 25 of 2015 SOCAF & COMPANY V JOHN MAINA NJOROGE & 5 others
- The said suit was heard and determined and a judgement was entered on 23rd September 2022 by the court
- The said suit involved the same parties herein, raised the same issues raised by the Plaintiff in the suit, consisted of the same subject matter in issue in this suit and was heard and determined by a court of competent jurisdiction
- The Plaintiffs suit should be struck off for contravening both law and equity
- The Plaintiff herein is a vexatious and frivolous litigant and proceedings herein, an abuse of the court process.
- The grant of the orders prayed for herein will result in saving of judicial time and costs to parties herein
3 The application is further supported by an affidavit sworn by Shantal Seru Lenjo an Advocate employed by the office of the 4th Defendant. The deponent reiterates the averments raised in the grounds in support of the application as outlined above herein. It is stated that it will be in the interest of justice that the application sought is allowed.
RESPONSE
4 The application is opposed by a replying affidavit sworn by Sammy Muchemi a co-director of the Plaintiff herein. He states that this suit is not res judicata as the issues raised herein are not the issues that were dealt with in Kwale ELC Case No 4 of 2021. It is stated that the instant suit was filed as a result of the outcome in Kwale ELC Case No 4 of 2021. That the Plaintiff entered into an agreement for sale of the suit property with the 1st Defendant to purchase the suit property Kwale/Msambweni “A”/2927. The Plaintiff executed the same by authenticating the 1st Defendants title which was dated 31/3/1998. After conducting the official search on 4/1/2013 it was established that the suit property was owned by the 1st Defendant. That the Plaintiff paid a total of Kshs 49,000.000/-. All the requisite payments like stamp duty were made and consent of the Land control board obtained. That transfer forms were lodged by the Directors to the Plaintiff and the Plaintiff registered as the absolute proprietor of the suit property on 25/6/2013.
5 The Plaintiff states that to its utter shock a suit was instituted being ELC KWALE No 4 of 2021 formerly MOMBASA ELC 25 of 2015 SOCAF & COMPANY V JOHN MAINA NJOROGE & 5 others where SOCAF claimed ownership of the suit property. The Plaintiff was joined in the suit as the 2nd Defendant. Judgement was made against the Plaintiff herein occasioning them tremendous loss. The Plaintiff states that it conducted due diligence before purchase relying on the official documents from the 2nd 3rd and 5th Defendants before the purchase. That their rights to ownership of property have been infringed and hence the instant suit.
6 The Plaintiff disputes the allegation that the suit filed herein is resjudicata and intimates that the gist of the suit is compensation from the land registrars for the losses suffered due to their negligence. That these issues were never determined in Kwale ELC No 4 of 2021. That the Plaintiff is seeking compensation and damages against the Defendants jointly and severally for the purchase price and other related expenses. That the issue of whether the Defendants are liable for negligence fraud and collusion have never been heard nor determined in Kwale ELC No 4 of 2021. The Plaintiff state that it is in the interest of justice that the application subject of this ruling be dismissed.
SUBMISSIONS
7 The 2nd to 6th Defendant/Applicants submissions are dated 12/8/2024. The Plaintiffs submissions are dated 31/10/24. I have considered the submissions.
Defendants Submissions
8 The Defendants contend that there must be an end to litigation and reliance is placed in the case of Independent Electoral & Boundaries Commission Vs Maina Kiai and 5 Others (2017). Referring to paragraph 18 of the Plaint herein it is submitted that the Plaintiff admits that the former suit was concluded against the Plaintiff title. According to the Defendants the Plaintiffs ought to have filed a counterclaim in the former suit. That all the issues raised in the present suit were fully determined in the former suit. Citing the case of Owners of Motor Vessel Lilian S Vs. Caltex Oil(Kenya) Ltd (1989). It is stated jurisdiction is everything and without the court has no power to make on more step herein since the suit is resjudicata. They also prayed for costs.
Plaintiffs Submissions
9 Counsel for the Plaintiff enumerated the ingredients of prejudicated as set out under section 7 of the Civil Procedure Act and by the Court of Appeal in John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others [2015] eKLR and Independent Electoral & Boundaries Commission Vs Maina Kiai and 5 Others (2017) and setting out the issues and reliefs sought in both suits it is submitted the same are distinct and separate. On jurisdiction the Plaintiff submit that pursuant to Article 162(2)(b) of the Constitution, Sections 4 , 13 (2)(b) and 13 (5) of the Environment & Land Court 2011 the court has jurisdiction to entertain the suit.
DISCUSSIONS AND DETERMINATION
10 The Notice of Motion is brought under Order 2 Rule 15 of the Civil Procedure Code which deals with striking out of pleadings, and provides as follows: -
“15. (1) At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that—
(a) It discloses no reasonable cause of action or defence in law; or
(b) It is scandalous, frivolous or vexatious; or
(c) It may prejudice, embarrass or delay the fair trial of the action; or
(d) It is otherwise an abuse of the process of the court, and may order the suit to be stayed or dismissed or judgment to be entered accordingly, as the case may be.”
11 The principles guiding the striking out of pleadings and cases are now well settled. These principles, were set out in D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & Another[1980] eKLR thus:
“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. At this stage the court ought not to deal with any merits of the case for that 'is a function solely reserved for the judge at the trial as the court itself is not usually fully informed so as to deal with the merits "without discovery, without oral evidence tested by cross-examination in the ordinary way". (Sellers, L.J. (supra)).
As far as possible, indeed not at all, there should be no opinions expressed upon the application which may prejudice the fair trial of the action or make it uncomfortable or restrict the freedom of the trial judge in disposing of the case in the way he thinks it right. If an action is explainable as a likely happening which is not plainly and obviously impossible the court ought not to overact by considering itself in a bind summarily to dismiss the action. 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. On the other hand, if there is a point of law which merits a serious discussion the court should be asked to proceed under order XTV" rule 2.”
12 It is the Defendants/Applicants case is that the instant suit offends the provisions of section 7 of the Civil Procedure Act. Section 7 of the Civil Procedure Act, 2010 provides as hereunder:
“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.”
The Black’s law Dictionary 10th Edition defines “res judicata” as
“An issue that has been definitely settled by judicial decision…the three essentials are (1) an earlier decision on the issue, (2) a final Judgment on the merits and (3) the involvement of same parties, or parties in privity with the original parties…”
13 In order to establish whether the issues raised in the suit herein were formerly determined in Kwale ELC No 4 of 2021. I have perused the plaint in the instant suit and from the same, the Plaintiff prays that judgement against the Defendants jointly and severally be entered in its favour against the Defendants as follows; -
- A declaration the Defendants are jointly and severally liable for any and every loss occasioned by the Plaintiff in purchase of all that property known as Kwale/ Msambweni A /2927 measuring 2.8Ha
- A declaration that the 5th and 6th Defendants performed their duties negligently and frequently that they are not fit to hold public office
- That the Defendants do pay to the Plaintiff a sum of Kshs 51,451,560.00/- being the total expenditure suffered by the plaintiff acquiring the suit property
- Interest on[c] above as from 25th June 2013 till payment of the decretal sum in full
- General damages
- The costs of the suit
14 I have further perused the judgement in Kwale ELC No 4 of 2021 which this court delivered on 23/9/2022. From the contents thereof, this court established the following issues for determination;
- Whether the Plaintiff is the lawful registered owner of the suit property
- Whether the 2nd Defendant was a bonafide purchaser
- Whether the 2nd and 3rd Defendants acquired valid interest over the suit property whether the interested party list of documents and submissions should be expunged from the record
- Whether the Plaintiff is entitled to the reliefs sought
- Who should bear the costs of this suit
15 The court in its findings held that the Plaintiff was entitled to the orders sought having proved on a balance of probabilities that it is the registered owner of the suit property. The Plaintiff SOCAF & COMPANY LIMITED was hence declared the registered freehold owner of the suit property Kwale/ Msambweni A /2927. The court is now tasked, based on this brief summary of what constitutes the two suits in contention, to make a finding on whether the instant suit offends the doctrine of resjudicata.
16 The Supreme Court in a decision rendered on 6th August, 2021 in John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others [2021] eKLR extensively dealt with the different components making up the doctrine of res judicata. The Apex Court went ahead and rendered itself on the threshold for proving the applicability of the doctrine. The Court stated as follows:
[86] We restate the elements that must be proven before a court may arrive at the conclusion that a matter is res judicata. For res judicata to be invoked in a civil matter the following elements must be demonstrated:
a) There is a former Judgment or order which was final;
b) The Judgment or order was on merit;
c) The Judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and
d) There must be between the first and the second action identical parties, subject matter and cause of action
17 Despite the similarity in parties in the instant suit with the previous matter, it is evident that the issues for determination are distinct. Whereas in the former suit this court dealt with issues of ownership of the suit property, the instant suit is mainly on compensation of the damages and loss incurred as a result of the negligence by some of the Defendants in carrying out their duties as civil servants and which resulted in the purchase of the property by the Plaintiff herein, the loss incurred is assessed at over Kshs 50 million. These circumstances distinguish this suit from Kwale ELC No 4 of 2021 which was on ownership of the suit property. The court therefore finds that the threshold for the doctrine of res judicata has not been met.
18 Should the plaint be struck out as sought? I believe not as the elements of res judicata have not been met. The Court of Appeal in the case of Blue Shield Insurance Company Ltd vs. Joseph Mboya Oguttu [2009] eKLR and whose findings I concur with established that striking out of pleadings is a drastic remedy that should only be resorted to where a pleading is a complete sham. Similarly, in the case of Crescent Construction Co. Ltd Vs Delphis Bank Ltd (2007) eKLR the same court stated thus: -
“However, one thing 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-honoured 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.”
DISPOSITION
19 The upshot is that the Applicants herein have failed to demonstrate that pursuant to Section 7 of the Civil Procedure Act Cap 21 Laws of Kenya, the instant suit is resjudicata. The application dated 15/5/2024 is hereby dismissed. Costs will follow the outcome of the main suit.
Orders accordingly.
Ruling dated signed and delivered this 5th day of November 2024
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Mr. Macharia for the Plaintiff
No appearance for the 1st Defendant
No appearance for the 2nd to 6th Defendant
Asma Maftah – Court Assistant