[2023] KEHC 24941 (KLR)

Abdalla & 3 others v Director of Public Prosecutions & 4 others (Petition 227 of 2018) [2023] KEHC 24941 (KLR) (2 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24941 (KLR)

Republic of Kenya

In the High Court at Mombasa

Petition 227 of 2018

OA Sewe, J

November 2, 2023

IN THE MATTER OF: ARTICLES 1, 2(4), 10, 21, 22, 23, 28, 35, 47, 48, 49, 50, 157, 159, 258 & 259 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF: THE DECISION TO CHARGE THE PETITIONERS IN MOMBASA CHIEF MAGISTRATE’S CRIMINAL CASE NO. 1631 OF 2018 IN THE MATTER OF: ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 27, 29, 48 & 50 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF: THE PENAL CODE, CHAPTER 63 OF THE LAWS OF KENYA AND IN THE MATTER OF: THE NATIONAL POLICE ACT & THE DIRECTOR OF PUBLIC PROSECUTIONS ACT

Between

Hassan Sheikh Abdalla

1st Petitioner

Zaffer Ebrahim Tayabali Karimjee

2nd Petitioner

Mustafa Fazalabbas Mohammedali

3rd Petitioner

Hashim Gotsat

4th Petitioner

and

Director Of Public Prosecutions

1st Respondent

The Inspector General Of Police

2nd Respondent

Director Of Criminal Investigations

3rd Respondent

The Chief Magistrates Court, Mombasa

4th Respondent

Ebrahim Sheikh Abdulla

5th Respondent

Ruling

1. The Notice of Motion dated 24th January 2023 was filed herein by the four petitioners under various provisions of the law. In particular, they cited Article 159(2)(d) of the Constitution, Sections 1A, 1B, 3A and 79B of the Civil Procedure Act, Chapter 21 of the Laws of Kenya, Orders 42 Rule 6, 50 Rule 6, and 51 Rule 1 of the Civil Procedure Rules, for orders that:(a)Spent(b)The Court be pleased to extend the time limited for filing of the Notice of Appeal and that the Notice of Appeal annexed to the application be deemed as having been duly filed.(c)That in the event the Notice of Appeal is admitted, the Court be pleased to grant stay of proceedings pending the hearing and determination of the intended appeal.(d)That the costs of the application be provided.

2. The application was premised on the grounds that, considering the divergent positions taken by the parties in their respective affidavits, the applicants moved the Court to allow for cross-examination of the deponents of the various affidavits; which application was dismissed by the Court (Hon. Ogembo, J.) on 7th September 2020. The applicants, being dissatisfied with the ruling, thereupon filed a Notice of Appeal dated 8th September 2020, but upon further reflection, opted to apply for review instead. They accordingly filed a Notice of Motion dated 22nd October 2020 as well as a Notice of Withdrawal of Appeal on 9th March 2021.

3. The applicants further explained that their application for review was thereafter heard and dismissed by Hon. Ogola, J. on 28th June 2021. They attempted to proceed with their Petition on the basis that the makers of the several affidavits would be availed for cross-examination, but this attempt was rejected by the Court (Hon. Onyiego, J.) on the basis that it would contradict the decision of Hon. Ogembo dated 7th September 2020. In the premises, the applicants approached the Court, vide the instant application, for extension of time to appeal the order of Hon. Ogembo, J. by filing a fresh Notice of Appeal.

4. In their Supporting Affidavit sworn on 24th January 2023 by their Advocate, Mr. Gikandi Ngibuini, the applicants explained that granted the decision of Hon. Onyiego, J. they were left with no other option but to file the instant application for leave. They averred that, the delay in filing a Notice of Appeal has been explained; and that the delay is neither inordinate nor unreasonable. At paragraphs 7 and 8 of the petitioners’ affidavit, it was deposed that the application has been brought in good faith and in the interest of justice; and that the intended appeal has overwhelming chances of success.

5. It was further explained by the affiant that the withdrawal of the earlier Notice of Appeal was based on the fact that, as an Advocate involved in the matter, he formed the honest opinion that the application for review of the ruling dated 7th September 2020 was more efficacious than proceeding with the appeal; which view has turned out to be mistaken. He therefore urged the Court to find merit in the application. Counsel annexed a copy of the initial Notice of Appeal dated 8th September 2020 as well as a copy of the belated Notice of Appeal filed on 23rd January 2023, among other documents, to buttress his averments.

6. The application was resisted by the respondents; to which end, the 1st respondent filed Grounds of Opposition dated 1st March 2023, contending that:(a)The application is a tactic made in bad faith and is merely intended to delay the hearing of the Petition.(b)There is inordinate delay by the petitioners in bringing the instant application, granted that the ruling intended to be appealed was made on 7th September 2020. (c)The application lacks merit as the threshold for granting such orders as set out in Order 42 Rule 6 of the Civil Procedure Rules has not been satisfied.(d)That the decision of the trial judge was well reasoned and the intended appeal has no chances of success.(e)The application is an abuse of the court process and offends Section 7 of the Civil Procedure Act on the doctrine of res judicata.

7. The 5th respondent, on his part, filed a Replying Affidavit sworn on 10th February 2023. In his view, the application is incompetent, granted that the petitioners had earlier filed a Notice of Appeal which they withdrew. The 5th respondent posited that the instant application is not only res judicata but is also incompetent on account of inordinate delay. He pointed out that the order sought to be appealed was issued on 7th September 2020, which is a period of about three years now. He added that he stands to suffer great prejudice should the application be granted as the outcome of the underlying criminal case shall aid in the fair determination of the other pending suits related thereto, namely, High Court Succession Cause No. 380 of 2010 and Environment and Land Case No. 6 of 2017. Accordingly, the 5th respondent prayed for the dismissal of the application.

8. The application was canvassed by way of written submissions, pursuant to the directions given herein on the 26th January 2023. Counsel for the petitioners relied on his written submissions dated 6th March 2023. While conceding that the application is belated, counsel cited Article 163(4) of the Constitution to support his argument that the right of appeal is enshrined in the Constitution. He likewise relied on Articles 47 and 259 of the Constitution that encourage growth of jurisprudence and urged that the petitioners’ desire to appeal ought not to be stifled. He also cited the case of Pithon Waweru Maina v Thuku Mugiria [1983] eKLR in seeking that his misjudgment in withdrawing the initial appeal ought not to be visited on the petitioners.

9. In respect of the allegations of undue delay, counsel cited several authorities, including Thambu Thura v Njagi M’thuura [2009] eKLR and Belinda Murai & 9 Others v Amos Wainaina [1979] eKLR to support the proposition that even when a party is late in taking a particular action, the law recognizes that to err is human, and that it is in the interest of justice that parties be accorded fair hearing as opposed to a resolution premised on technicalities.

10. In support of the petitioners’ prayer for stay pending appeal, counsel submitted that it would be pointless proceeding with this suit on the basis of conflicting affidavits, in the event that extension of time is granted. He relied on Partick Kagai Kiarie & 3 Others v Michael Kahurani Kiarie & Another [2020] eKLR and Butt v The Rent Restriction Tribunal, Civil Appeal No. 6 of 1979 to buttress his submissions in support of the application.

11. The 1st respondent relied on the written submissions dated 14th March 2023 and proposed the following issues for determination, namely:(a)Whether the prayer for extension of time is merited.(b)Whether the application is an abuse of court process.(c)Whether the respondents stand to suffer prejudice.(d)Whether the application is res judicata

12. On whether the prayer for extension of time is merited, the 1st respondent submitted that no explanation has been tendered as to why the petitioners failed to take any steps in filing an appeal after the dismissal of their review application on the 28th June 2021. Accordingly, the 1st respondent took the view that the delay is inordinate. In this regard, reliance was placed on Pullin Harakchand Shah v Southern Credit Banking Corporation Limited [2016] eKLR and Leo Sila Mutiso v Rose Hellen Wangari Mwangi, Civil Application No. NAI 225 of 1997 as to the prerequisites for extension of time; and to support the argument that the discretion of the Court to extend must be exercised judiciously.

13. On whether the application is an abuse of the court process, the 1st respondent submitted that there is nothing before the Court to assist it in arriving at the conclusion that the intended appeal has high chances of success. It was suggested therefore that the petitioner ought to have attached a draft or proposed Memorandum of Appeal to their application to enable the Court appreciate the arguability of their proposed appeal. The 1st respondent relied on Gerald M’Limbine v Joseph Kangangi [2009] eKLR in this regard and added that the onus was on the petitioners to demonstrate that they would suffer prejudice if the orders sought are denied; which burden has not been discharged.

14. Lastly, the 1st respondent submitted that the application is res judicata from the standpoint of Order 45 Rule 1(b) of the Civil Procedure Rules, since the petitioners initially filed a Notice of Appeal which they withdrew in favour of a review application. Accordingly, the 1st respondent argued that the petitioners have exhausted their options and cannot purport to seek time to appeal. Reliance was placed on The Chairman Board of Governors Highway Secondary School v William MMosi Moi, Civil Application No. 227 of 2005 in urging the Court to dismiss the application with costs.

15. The factual background of the application is largely undisputed. The petitioners filed this Petition on 1st October 2018 seeking the following reliefs against the respondents:(a)A declaration that the initiation, maintenance and prosecution of Mombasa Chief Magistrate’s Criminal Case No. 1631 of 2018 against them is an abuse of the criminal justice process and contravenes the petitioners’ constitutional rights to freedom and security of the person, right to fair hearing, right to equality and freedom from discrimination.(b)A declaration that the institution, maintenance and prosecution of Mombasa Chief Magistrate’s Criminal Case No. 1631 of 2018 against them is oppressive, malicious and an abuse of the court process.(c)A declaration that the 5th respondent has no capacity to lodge any complaint regarding the ownership of Mombasa/Block XVI/137. (d)An order prohibiting continuance of Mombasa Chief Magistrate’s Criminal Case No. 1631 of 2018 against the petitioners herein.(e)An order for compensation in the form of damages as redress in respect of the breach of the petitioners’ rights as stated above.(f)The costs of the Petition.

16. Concomitantly, the petitioners filed a Notice of Motion dated 26th September 2018 for conservatory orders staying the proceedings in Mombasa Chief Magistrate’s Criminal Case No. 1631 of 2018 pending the hearing and determination of the Petition. The said application was allowed on 5th May 2020 and conservatory orders granted as prayed pending the disposal of the Petition or until such other or further orders by the Court. The Petition was thereafter fixed for hearing on 7th September 2020 when counsel for the petitioners proposed that the Petition be canvassed by way of viva voce evidence. Since counsel for the respondents were of a contrary view, a ruling was made by the Court favouring disposal by way of affidavit evidence along with written submissions.

17. Being dissatisfied with the ruling of the Court, the petitioners filed a Notice of Appeal dated 8th September 2020. The intended appeal was never filed. Instead, the petitioners opted to file, and did file, an application for review dated 22nd October 2020. For that purpose, they withdrew the Notice of Appeal. The review application was therefore prosecuted to conclusion and a ruling delivered in that respect by Hon. Ogola, J. on 28th June 2021 stating:“Applying the principles laid down in the above precedents, I decline the invitation to set aside and/or review the Court’s order issued on 7/09/2020. The application dated 22/10/2020 is unmerited and misconceived. Accordingly, I dismiss it with costs in the cause.”

18. The court record further shows that, undeterred, the petitioners sought another opportunity to raise the issue of variation of the order issued on 7th September 2020 before Hon. Onyiego, J. which the respondents resisted. Accordingly, the Court ruled on 14th December 2022 thus:“I have perused the ruling of 7. 9.20 which is clear on the issue. Justice Ogola directed hearing to proceed by affidavit evidence and submissions. That is the position of the Court up to now and the issue is settled.”

19. The petitioners now contend that, upon reconsideration of the matter, and following the directions by Hon. Onyiego, J. they wish to appeal the ruling of 7th September 2020 and hence their application for extension of time. They have, in the interim, filed a fresh Notice of Appeal dated 23rd January 2023 which they seek to have admitted out of time. The petitioners contended, at paragraph 7 of their Supporting Affidavit, that the primary obligation of any court of law is to do justice and that justice cannot possibly be done in a situation where several affidavits have been sworn and the deponents have taken positions that are dramatically different on factual matters.

20. In the premises, the main issues for determination, having taken into consideration the averments in the parties’ affidavits and the written submissions filed by their counsel, are:(a)Whether indeed the application is res judicata;(b)Whether the application is otherwise competently before the Court.(b)Whether sufficient cause has been shown for extension of time to file a Notice of Appeal.

A. On Res Judicata: 21. Section 7 of the Civil Procedure Act is explicit 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 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.”

22. The doctrine not only applies to suits but also to applications of a similar nature, whether in the same suit or not. Thus, in Uhuru Highway Development Ltd v Central Bank of Kenya & 2 Others, Civil Appeal No. 36 of 1996, the Court of Appeal held:“There is not one case cited to show that an application in a suit once decided by courts of competent jurisdiction can be filed once again for rehearing. This shows only one intention on the part of the legislature in India and our Civil Procedure Act. That is to say, there must be an end to applications of a similar nature; that is to say further, wider principles of res judicata apply to applications within the suit. If that was not the intention, we can imagine that the courts could and would be inundated by new applications filed after the original one was dismissed. There must be an end to interlocutory applications as much as there ought to be an end to litigation..."

23. It is plain then that, by their application dated 23rd January 2023, the applicants are not seeking to re-open any of the arguments raised in their previous applicants. What they are seeking is extension of time to appeal the decision of the Court dated 7th September 2018. In the premises, the argument by the respondents that the instant application is res judicata is therefore untenable.

B. On the competence of the application: 24. The foregoing notwithstanding, the 1st respondent did argue that, having opted to withdraw their appeal to pursue a review, the petitioners exhausted their options and cannot be heard to belatedly seek leave to file another Notice of Appeal out of time. The argument was premised on the wording of Section 80 of the Civil Procedure Act and Order 45 Rule 1, Civil Procedure Rules. To begin with, Section 80 of the Civil Procedure Act provides:Any person who considers himself aggrieved—(a)by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.

25. Similarly, Order 45 Rule 1 of the Civil Procedure Rules, states:(1)Any person considering himself aggrieved—(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.

26. To my mind, the provisions admit no controversy that a party who is aggrieved with a court decree or order is thereby put to election to either proceed on appeal or to file an application for review. This must be why, upon filing an application for review, counsel for the petitioners took the decision to withdraw the initial appeal initiated by way of the Notice of Appeal dated 8th September 2020. Having taken that route, the only avenue available to the petitioners after the ruling on review was to appeal that ruling; and certainly not the ruling that was the subject of review. This was the view expressed by the Court of Appeal in Chairman Board of Governors Highway Secondary School v William Mmosi (supra) in which it was held:“The Board took an active part in giving instructions to the advocate on the various matters the advocate was pursuing before the superior court. In particular the Board gave instructions that an application be filed for review of the ruling of Hayanga J made on 26th September, 2003. It is the same ruling against which instructions had already been given for filing an appeal to the Court of Appeal. In those circumstances, we think, the options available to the Board were exhausted when the application for review was determined by the superior court and we doubt that the intended appeal would be valid even if it was filed…the Board was at liberty to pursue the option of review of the orders made on 26th September, 2003 despite the filing of a notice of appeal to challenge the same orders. We have no hesitation however in stating that upon the exercise of that option and pursuit thereof until its conclusion, there would be no further jurisdiction exercisable by an appellate court on the same orders of the court. The record here shows that the Board filed an application for review dated 24th February, 2004, on 4th March, 2004. That application was determined by the superior court on 7th December, 2004 when it was dismissed for whatever reason. No further action appears to have been taken by the Board after that dismissal. In our view that was the end of the matter and the notice of appeal was rendered purposeless. Both options in our judgment cannot be pursued concurrently or one after the other.”

27. In the premises, it is manifest that the instant application is indeed misconceived. That being my finding, no useful purpose will be served by a merit consideration of the application. Accordingly, the petitioners’ Notice of Motion dated 24th January 2023 is hereby struck out with an order that the costs thereof be in the cause.It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 2ND DAY OF NOVEMBER, 2023. OLGA SEWEJUDGE