[2018] KEHC 4530 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

HCCA NO. 7 OF 2005

ATHI RIVER MINING LIMITED......................................APPELLANT

VERSUS

GEORGE OTIENO MADARA.....................................RESPONDENT

[Appeal from the judgment of Hon. H. N. Ndungu PM in Kajiado SRMCC No. 16 of 2000 delivered 1/2/2006]

JUDGMENT

1. The only question urged by the appellant in his appeal is whether the proceedings before the trial court were res judicata by virtue of the plaintiff having filed another suit Kajiado RMCCC No. 22 of 2001, allegedly based on the same cause of action and against the same appellant.

2. In her judgment, the Senior Resident Magistrate held as regard to issue of res judicata as follows:

“I have perused the alleged plaint in SRMCCC 22/2001. The plaintiff had sued for an accident which allegedly occurred on 16/8/1998. In the current suit injury as alleged to have occurred on 15th November 1996. Clearly the two are different claims although had he wanted he may have filed the suits he apparently did not opt to join them. In my view he is at liberty to either have joined or to do the suits separately. A court cannot force him either way. I will therefore go ahead to look at the merits or demerits of the current suits.”

3. The central argument of the appellant’s submissions was encapsulated in the following paragraphs of submissions dated 10/2/16 filed by M/s. Manthi Masika & Co. Advocates for the appellant:

“We cited the following cases that shows very clearly once you are injured, for example twice in the place of employment at different days with different injuries, where the employee and the employer relationship is the same and the same contract of employment then you have to file one suit and not two.

The Respondent was well aware of the facts of the two suits and still went on to sue twice for one cause of action that is to say breach of contract of employment. The matter raised in the current suit could have been raised in the fewer suit.”

4. The appellant relied on the wider sense of the doctrine of res judicata as identified in the House of Lords decision in Yat Tung Investment Co. Ltd v. Dao Heng Bank Ltd & Another(1975) AC 581 applied in the Kenyan case ofPop-in (Kenya) Ltd & 3 others v. Habib Bank Court of Appeal Civil Appeal No. 80 of 1998 that it is an abuse of the process of the court to raise issues in a subsequent suit which could have been raised in a previous suit between the parties. See also Mburu Kinyua v. Gichini Tuti. (1978) KLR 69.

It was submitted, moreover, that the Magistrate’s decision offended the provisions of Order II Rule (1) (2) of the Civil Procedure Rules, 1948 (now set out in Order 3 Rule 4 (2) Civil Procedure Rules, 2010).

“(2) Where a plaintiff omits to sue in respect of or relinquishes any portion of his claim, he shall not afterwards suit in respect of the portion omitted or relinquishes.”

It was submitted that “the suit as well as the earlier suit that had been filed on 16/3/2001 being SRMCC No. 22 of 2001 were based on the same cause of action being breach of contract of employment and should have been dismissed because it was an abuse of the process of the court.”

5. For the Respondent, it was submitted by written submission dated 23rd March, 2016 filed by M/s Ochieng’ Ogutu & Co. Advocates for the Respondent that the two suits were on different causes of action.

“The question therefore is: were the two suits i.e. KAJIADO RMCC NO. 16 of 2000 AND KAJIADO SRMCC NO. 22 OF 2001based on the same cause of action or same transaction?

The Respondent humbly submits that these two suits are not based on the same cause of actions. A cause of action is a combination of facts giving rise to a claim or right to sue.

The cause of action in Suit No. 22 of 2001 was the accident that occurred on 16th June, 1998. The cause of action in Suit No. 16 of 2000 was the accident that occurred on 19th November, 1999. Evidently therefore, the two suits do arise out of different causes of action and relate to completely different injuries and or incidents that took place on different dates.

The Appellant seems to be clutching at straws by contending, albeit erroneously, that breach of an employment contract is a cause of action! Albeit erroneously, that breach of an employment contract is a cause of action! The Respondent submits that whereas an accident is a cause of action, breach of an employment contract is not.

The Appellant’s argument seems to be that if on a certain date and employee of BIDCO sustains injuries to the arm in the course of work for the company and files a suit in 2012, then later in 2014 after the determination of the matter, he breaks a leg in the course of duty for the same employer, then the employee cannot file another suit. What an injustice!

Therefore Section 7 of the Civil Procedure Act, Cap 21 has no place in the present scenario hence; it is inapplicable and cannot boast of a niche in the present situation.”

Determination

6. I think the question whether a subsequent suit is res judicata by virtue of the previous suit depends on whether the cause of action in former had crystallized at the time of filing of the matter. If the cause of action in the subsequent suit was available at the time of filing the previous suit, then it will be an abuse of the process of the court as this would amount to litigating by installments against the wider sense of res judicata identified in the Privy Council decision in Yat Tungsupra.

7. Breach of contract of employment is not a one-off cause of action upon which all claims carrying out of the contract may be based because of action in this case, or the reason for the complaint is the breach of the terms of the contract, as many times as it happens, as to give the plaintiff a reason to complain basing this entitlement to relief to the contract of employment between the parties.

8. The two causes of action in the respective suits are as follows:

Paragraph 5 of Civil Suit No. 16 of 2000 Plaint dated 27th January, 2000 and filed on 17/2/2000.

“On or about 15th November, 1999, the plaintiff was lawfully at his place of work with the defendant when due to the negligence and/or want of care of the defendants, its employees, agents or servants a heavy metallic object fell on his right foot as a result whereof the plaintiff suffered serious personal injuries.”

The plaint in SRMCC No. 22 of 2001 was shown to relate to an accident happening on 16/8/1998.

9. Clearly, at the time of filing of the suit SRMCC No. 16 of 2000 on 17/2/2000, the plaintiff was possessed of the facts giving rise to the cause of action in the subsequent suit SRMCC No. 22 of 2001.

10. As Order II Rule 2 (1) of the applicable Civil Procedure Rules (1948) [now Order 3 Rule (5) (1) of Civil Procedure Rules, 2010] permitted joinder of causes of action, there cannot be a valid defence to the failure to plead the cause of action in SRMCCC No. 22 of 2001 whose supporting facts were in existence when the earlier suit no. 16 of 2000 was filed. There is, therefore, no occasion for the injustice alluded to by the Respondents in the submissions quoted above.

11. The principle of res judicata in the wider sense as elaborated in the Yat Tung case applies to this case “so it becomes an abuse of the process of the court to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings” in filing the 2001 suit when the 2000 suit ought to have included the two claims for damages.

12. However, the subsequent suit SRMCCC 22 of 2001 is the one which was determined first in time and the principle of res judicata in the wider sense does not strictly apply as the objection was not taken in the later 2001 suit for failure to include the claim therein in the earlier 2000 suit.

13. In the circumstances of this case, I consider it against justice and an abuse of the court process to allow the plaintiff/respondent to recover damages in breach of the rules of the court on litigation of claims in one suit where the causes of action can be joined. Had the objection been taken in the 2001 suit, the same should have been struck out for being res judicata and an abuse of the process of the court. Since the said subsequent suit has already been determined, the court shall in the interest of justice and to prevent abuse of the court process, pursuant to section 3A of the Civil Procedure Act, while affirming the plaintiff’s right to recover damages for the injury suffered award only a nominal figure in general damages.

Orders

14. Accordingly, for the reasons set out above, there shall be an order setting aside the judgment and decree of the trial court and substituting therefor an award for nominal general damages in the sum of Kenya Shillings One Thousand (Ksh.1,000/-) only from the date of this Judgment, together with special damages as found and awarded by the trial court.

15. The respondent has abused the process of the court in filing two proceedings when he could have filed only one suit for the two causes of action and there shall, therefore, be no order as to costs.

EDWARD MURIITHI

JUDGE

DATED AND DELIVERED ON 21ST DAY OF MAY 2018

KEMEI J.

JUDGE

Appearances:

M/S Manthi Masika & Co. Advocates for the Appellant.

M/S Ochieng’ Ogutu & Co Advocates for the Respondent.