[2023] KEHC 24654 (KLR)

Aloice t/a Siloam Hide and Skin Co Ltd v Njeru & another (Suing as legal representatives of Daniel Gitonga Njeru) (Civil Appeal 4 of 2016) [2023] KEHC 24654 (KLR) (1 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24654 (KLR)

Republic of Kenya

In the High Court at Embu

Civil Appeal 4 of 2016

LM Njuguna, J

November 1, 2023

Between

Ngugi Aloice t/a Siloam Hide And Skin Co Ltd

Appellant

and

Esther Kanini Njeru

1st Respondent

Simon Muchira

2nd Respondent

Suing as legal representatives of Daniel Gitonga Njeru

Ruling

1. The applicant has filed a notice of motion dated 16th June 2023, supported by the grounds set out on the face of the application as well as the facts deposed in the supporting affidavit thereof. The orders sought are as follows:a.Spent;b.That pending the hearing and determination of this Application inter-partes, a stay of execution of the judgment and/or decree issued on 21st December 2015 in Embu CMCC No. 207 of 2015 by Hon. M. Gicheru and all consequential orders and proceedings thereto be and is hereby issued and/ or granted;c.That pending the hearing and determination of this application, there be a stay of execution of the judgment and/or decree of Hon. F. Muchemi delivered on 19th November 2020 and all consequential orders and proceedings thereto, be and is hereby issued and/ or granted;d.That pending the hearing and determination of this application, there be a stay of execution of warrants of attachment dated 06th April 2023 and consequential orders and proceedings thereto be and is hereby issued and/or granted;e.That pending the hearing and determination of this application, the auctioneer’s tax their bill of costs dated 14th April 2023 amounting to Kshs. 688,970. 96/=;f.That the respondent herein tabulates how they arrived at the figure of Kshs. 1,779,929. 00 as indicated in the warrants of attachment dated 06th April 2023;g.That this honourable court do make any such further orders and do issue any further relief it may deem just to grant in the interest of justice: andh.That the costs of this application abide in the outcome of the appeal.

2. The application is brought under Order 45 Rule 1, Order 50 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules and Sections 1A, 1B, 3A and 95 of the Civil Procedure Act.

3. The history of the matter is that tortuous claim was filed in Embu CMCC No. 207 of 2015 wherein the respondents were awarded all-inclusive damages of Kshs. 1,953,450/=. The appellant filed an appeal in Embu HCCA No. 4 of 2016 herein, where the court upheld the award of the lower court through judgment dated 19th November 2020, following which, a decree dated 3rd December 2021 was issued. The applicant herein alleges that the decree-holder is attempting to execute the decree for an amount far larger than what the court awarded. That warrants of attachments have been issued to vintage auctioneers for Kshs. 1,779,929. 00/= but the applicant has already paid close to Kshs. 3 million. That the applicant paid Kshs. 925,812/= on 12th May 2021 through direct remittance to the respondent’s advocate and a further Kshs. 1,159,672. 50/= on 17th April 2023 leaving a balance of Kshs. 620,256. 90/=.

4. The respondents filed a replying affidavit sworn on 10th July 2023 stating that the applicant made a partial payment of the decretal sum after the warrants had been issued. That the applicant had filed a similar application in the lower court and the same was dismissed for want of attendance on the 3rd May, 2023. That a subsequent motion for reinstatement of the dismissed motion was also dismissed and the applicant has appealed against those orders. They argued that this application is an abuse of the court process and that the same should be dismissed as the applicant has not come to the court with clean hands and has failed to disclose that he has sought the same orders before another court.

5. The respondents also filed grounds of opposition dated 10th July 2023 reiterating that the motion is otherwise an abuse of the court process, as the court is being urged to usurp the process of the subordinate court; the basis of the motion being warrants of execution issued by the subordinate court which warrants have not been appealed from, nor reviewed. That the motion is misguided as it seeks a review of an order that was not issued by this court.

6. In this application, the court directed that the parties file their written submissions. Both parties complied.

7. It was the applicant’s submission that he has settled a total of Kshs. 2,984,762/= towards the decretal amount and yet warrants have been taken out for Kshs. 1,779,929/= which the respondents claim to be interest accruing. That the judgment of Hon. F. Muchemi on 19th November 2020 was silent on the issue of interests and only awarded costs of the suit to the respondents. That in drawing the decree, the respondent should not have included interests as the same was not included on appeal. He relied on the case of David Makau v Maua Mutie Ndunda [2017] eKLR. It was his argument that the decretal amount had been fully settled and that interests claimed to have accrued as stated in the warrants is misleading to the court.

8. The respondents submitted that this court is functus officio after the judgment was passed. That the warrants which are the subject of the application, were issued by the lower court and cannot be reviewed herein but only by the lower court that issued the warrants. That the applicant did not appeal against the decision of the lower court dismissing the application similar to this one, that was dated 15th April 2023.

9. The issues for determination are:a.Whether application is res judicata;b.Whether the application meets the threshold for issuance of orders for stay of execution.

10. The court has perused the record and the annexed documents and it is true that a similar application dated 15th April 2023 was filed at the lower court and was dismissed for non-attendance as both parties failed to attend court for the hearing of the application. The orders of the court have not been appealed against but instead, the applicant has brought the same application to this court in the very same fashion seeking the same orders.

11. In the case of Lal Chand v Radha Kishan, AIR 1977 SC 789 it was stated that;“The principle of res judicata is conceived in the larger public interest which requires that all litigation must, sooner than later, come to an end. The principle is also founded in equity, justice and good conscience which require that a party which has once succeeded on an issue should not be permitted to be harassed by a multiplicity of proceedings involving determination of the same issue. The practical effect of the res judicata doctrine is that it is a complete estoppel against any suit that runs afoul of it, and there is no way of going around it – not even by consent of the parties – because it is the court itself that is debarred by a jurisdictional injunct, from entertaining such suit.”

12. Section 7 of the Civil Procedure Act provides for res judicata 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.”

13. Similarly, in the case of The Independent Electoral and Boundaries Commission v Maina Kiai & 5 others, [2017] eKLR, it was held that:“For the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must be satisfied, as they are rendered not in disjunctive but conjunctive terms;a)The suit or issue was directly and substantially in issue in the former suit.b)That former suit was between the same parties or parties under whom they or any of them claim.c)Those parties were litigating under the same title.d)The issue was heard and finally determined in the former suit.e)The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.”

14. However, where the former suit was not subjected to the full process of hearing on merit but was either struck out or dismissed for non-attendance by parties, the suit cannot be said to have been heard and determined to settle the claim on merit. I am of the view that the issues raised in the application dated 15th April 2023 remain unsettled and are yet to be conclusively determined.

15. In the case of Moses Mbatia v Joseph Wamburu Kihara [2021] eKLR, the court held the same view as the one in the case of Tee Gee Electrics and Plastics Company Ltd v Kenya Industrial Estates Limited [2005] KLR 97 as follows:“Both the policy rationale as well as our case law lean in the direction that a suit will only be deemed to be barred by res judicata when it was heard and determined on the substantive merits of the case as opposed to suits that are dismissed on preliminary technical points. Res Judicata bars a future suit only when the case is resolved based on the facts and evidence of the case or when the final judgment concerned the actual facts giving rise to the claim. For example, dismissal of a case for lack of subject matter or because the service was improper or even for want of prosecution does not give rise to judgments on the merits and therefore do not trigger the plea of res judicata. The last issue (dismissal for want of prosecution) was the issue in The Tee Gee Electrics and Plastics Company Ltd Vs Kenya Industrial Estates Ltd [2005] KLR 97; LLR CAK 6880. Here the Court of Appeal was explicit that res judicata does not apply if the earlier suit was dismissed for want of prosecution as the same was not heard on merits”.Given the foregoing, I do not think that this application is barred by res judicata but the same is an abuse of the court process.

16. Consequently, the same is hereby struck out with costs to the respondents.

17. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 1ST DAY OF NOVEMBER, 2023. L. NJUGUNAJUDGE..............................................for the Applicant..............................................for the Respondent