[2024] KEHC 1034 (KLR)

Bore v Spire Bank Limited & another (Civil Case 8 of 2020) [2024] KEHC 1034 (KLR) (8 February 2024) (Ruling)

Neutral citation: [2024] KEHC 1034 (KLR)

Republic of Kenya

In the High Court at Kitale

Civil Case 8 of 2020

AC Mrima, J

February 8, 2024

Between

Edna Cherono Bore

Plaintiff

and

Spire Bank Limited

1st Defendant

Pampa Churrasscaria Limited

2nd Defendant

Ruling

Introduction: 1. On 14th January 2021, the 1st Defendant herein, Spire Bank Limited, filed an evenly dated application by way of a Notice of Motion.

2. The application was brought on the backdrop of some six other suits relating to the parcel of land known as LR No. 2116 1050 (I R No. 52527) Kibomet area Kitale Municipality (hereinafter referred to as ‘the property’).

3. The application sought to strike out the suit for being an abuse of the Court process.

4. The application was opposed.

The Applicant’s case: 5. The Applicant averred that the Plaintiff had secured a loan with itself which account was not performing by either under repayment, delayed repayment and/or refusing to make monthly loan payments in accordance with the agreement.

6. As the Applicant commenced the realization of the security, which is the property herein, the Plaintiff through herself and her proxies filed six different suits with an aim of curtailing the process.

7. The suits were as follows: -i.Kitale ELC No. 59 of 2016 Edna Cherono Bore v. ECB & 2 Others.Injunctive orders were discharged by the Court on 28th July, 2016 and the entire suit dismissed for want of prosecution on 27th February, 2017. ii.Kitale Misc. Application No. 14 of 2017 Edna Cherono Bore v. Spire Bank Limited & Another.The application was dismissed for lack of merit.iii.Kitale HCCC No. 8 of 2018 Henry Simon v. Spire Bank Limited & Edna Bore.An application for injunction was dismissed.iv.Kitale HCCC No. 34 of 2018 Henry Simon Nyang’au v. Spire Bank Limited.Upon dismissal of an application for an injunction, the Plaintiff filed an application for stay pending an intended appeal. The application was also dismissed on 29th October 2018. v.Kitale HCCC No. 23 of 2018 Edna Cherono Bore v. Spire Bank Limited & Another.Application for injunction declined. Matter abandoned and eventually dismissed for want of prosecution.vi.Kitale HCCC No. 8 of 2020 Edna Cherono Bore v. Spire Bank Limited & Another.This is the instant suit. Plaintiff was granted conditional injunction, but failed to comply.

8. On the basis of the above matters, the Applicant posited that the Plaintiff was playing lottery with the judicial process, hence, abusing the Court process since all the matters related to the same property and were aimed at curtailing the efforts by the Applicant in the realization of the security.

9. The application was supported by an Affidavit sworn by one John Wageche, the Plaintiff’s Senior Legal Officer. The affidavit annexed copies of the pleadings and applications in the six suits in demonstrating that the Plaintiff was abusing the Court process.

10. The Applicant further filed written submissions dated 27th April, 2021. It posited that the instant suit was res judicata and urged this Court to dismiss it. Several decisions were referred to as well.

The Response: 11. The Plaintiff opposed the application. She filed a Replying Affidavit and written submissions.

12. The Plaintiff denied that the suits were an abuse of Court process and averred that the issues in each of the suits were distinct.

14. It was the Plaintiff’s prayer that the application be dismissed.

Analysis: 15. This Court has considered the application, the response, the written submissions and the decisions referred to therein.

16. Of paramount importance is the fact that the ground upon which the application was made was that the six suits amounted to an abuse of the Court process. However, in the submissions, the Applicant argued that the instant suit was res judicata.

17. The two grounds are quite different and they are based on totally different legal principles. In an adversarial system of litigation any evidence which does not support the pleadings is for rejection. That is to say, when a party frames a suit or an application on the basis that the suit or the application thereof is an abuse of the Court process and the Defendant/Respondent addresses itself to that position, then the Applicant ought not to thereafter introduce new grounds at the submissions’ stage. (See the Court of Appeal in Independent Electoral and Boundaries Commission & Ano. v. Stephen Mutinda Mule & 3 others (2014) eKLR.)

18. As a general rule, there are, of course, exceptions thereto. Such have been considered judicially. The Court of Appeal for Eastern Africa in Vyas Industries v Diocese of Meru [1976] eKLR stated as follows: -.... The circumstances in which an unpleaded issue can become an issue in a suit is a question which was considered in Odd Jobs v Mubia [1970] EA 476 in which it was held that: -a.a Court may base its decision on an unpleaded issue if it appears from the course followed at the trial that the issue had been left to the Court for decision;b)on the facts the issue had been left for decision by the court as the Advocate for the Appellant led evidence and addressed the Court on it.

19. In Pacific Frontier Seas Ltd v Kyengo & another [2022] KECA 396 (KLR), the Court of Appeal at Malindi in Civil Appeal No. 32 of 2018 held as follows: -As regards unpleaded issues, the principle is well settled that a court, even when it has jurisdiction, will not base its decision on unpleaded issues because the issues determined by the court must flow from pleadings. It is the pleadings which guide the litigation and succinctly inform the parties and the court what is in dispute. However, where the parties lead evidence and address the unpleaded issues and from the cause adopted at trial it appears that the unpleaded issues have been left for the decision of the court, the court will validly determine the unpleaded issues. (See Captain Harry Gandy v. Caspar Air Charters Ltd [1956] 23 EACA 139; Odd Jobs v. Mubea [1970] EA 476, D.E.N. v. P.N.N. (supra), Baber Alibhai Mawji v. Sultan Hashim Lalji & Another, CA No 296 of 2001; and Mapis Investment (K) Ltd v. Kenya Railways Corporation (2005) 2 KLR 410). Nevertheless, we should add that parties cannot validly leave unpleaded issues over which the court has no jurisdiction for it to decide, simply because parties cannot by consent, confer jurisdiction to a court which in law it does not have.

20. The above position had been affirmed in Justice Kalpana H. Rawal v Judicial Service Commission & 3 others [2016] eKLR by the very Court of Appeal in Civil Appeal No. 1 of 2016 at Nairobi. The Court expressed itself thus: -The principles of law on unpleaded issues, as stated by the appellant, are correct and not in dispute. A court will not determine or base its decision on unpleaded issues. Where however, evidence is led and it appears from the cause followed at trial that an unpleaded issue has been left to the court to decide, the trial court can validly determine the unpleaded issue. Accordingly, we need not belabour or restate the principles here in detail, save to mention but some decisions, which have crystallized those principles. These include Captain Harry Gandy v. Caspar Air Charters Ltd [1956] 23 EACA 139; Odd Jobs v. Mubea [1970] 476, D.E.N. v. P.N.N. (supra), Baber Alibhai Mawji v. Sultan Hashim Lalji & Another, CA No 296 of 2001; and Mapis Investment (K) Ltd v. Kenya Railways Corporation (2005) 2 KLR 410.

21. Applying the above exceptions to the case at hand, it comes to the fore that the issue that the instant suit was res judicata was neither raised by the Applicant in the application nor responded to by the Plaintiff. The issue only arose in the Applicant’s written submissions. Therefore, none of the exceptions to the general rule applies in this matter. As such, the issue of res judicata will not be addressed by this Court in the instant application.

22. The only issue at hand is, therefore, whether the instant suit amounted to an abuse of the Court process.

23. The Court of Appeal in Muchanga Investments Limited v Safaris Unlimited (Africa) Ltd & 2 others Civil Appeal No. 25 of 2002 (2009) eKLR 229, in dealing with the principle of abuse of Court process stated as follows: -The term abuse of Court process has the same meaning as abuse of judicial process. The employment of judicial process is regarded as an abuse when a party uses the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice. It is a term generally applied to a proceeding, which is wanting in bona-fides and frivolous, vexatious or oppressive.

24. Abuse of the Court process is a settled legal principle applicable on two fronts. First, from a public interest perspective, duplication of proceedings is a waste of precious Court time and resources. That is in addition to the risk of inconsistent findings which threaten to bring the administration of justice into disrepute. Second, from a private interest perspective, it is highly vexatious and oppressive to the opposite parties not only in terms of time and costs, but also in that the “dry-run” of the claim in the prior proceedings affords the Plaintiff an opportunity to refine its case and work around any defence, evidence or explanation that the opposite party in the subsequent action put forward.

25. Applying the above guidance to this case, it is a fact that all the six suits referred to by the Applicant related to the property. Each of the suits, in a way or another, challenged the sale of the property by the Applicant. That can be easily deciphered from the pleadings as annexed in the application.

26. There was a common and deliberate thread which revealed that the impugned suits were, for all intents and purposes, meant to scuttle the realization of the property which was the security for the advancement of monies by the Applicant to the Plaintiff. The suits were essential based on the same factual matrix, raised similar or closely related legal issues, called for the same factual witnesses and documentary evidence and they claimed similar reliefs. The Applicant has had to fight all the suits in entrenching its rights over the security. The costs thereto, since then, are no doubt ernomous.

27. Resulting from the said suits, the Plaintiff and her proxies were largely denied any injunctive orders, and, in the instances where conditional orders were granted, the Plaintiffs failed to comply with any of them. At the moment, four out of the six suits were dismissed for want of prosecution.

28. This Court now finds that the plethora of the suits, including the instant one, were manifestly unfair to the Applicant and plainly constituted unjust harassment where the Applicant had to defend itself against each of them. Apart from the cost element and the inconvenience occasioned to the Applicant, the suits would readily bring the administration of justice into disrepute if the overlapping claims in the present proceedings were allowed to proceed. It is also a fact that, if the present suit is allowed to proceed, it would be tantamount to a collateral attack on or circumvention of the outcomes of the prior suits.

29. The totality of the foregoing is that the instant proceedings amount to abuse of the Court process. Further, this Court in December 2022 granted the Applicant leave to purchase the property and the order remains unchallenged. Again, since the Plaintiff was granted conditional orders which she failed to honour, no other step has been taken in the matter and even the Plaintiff’s Counsel withdrew from acting for the Plaintiff.

30. Therefore, sustaining this suit will not yield any positive results. It is only fair, and in the unique circumstances of this case, that the prayers sought be allowed.

31. In sum, the application is merited.

Disposition: 32. Drawing from the above, the following final orders do hereby issue: -a.The Notice of Motion dated 13th January, 2021 is hereby allowed.b.This suit is hereby struck out on the basis that it amounts to an abuse of Court process.c.The Plaintiff shall shoulder the costs of the application and the suit.Orders accordingly.

DELIVERED, DATED AND SIGNED AT KITALE THIS 8TH DAY OF FEBRUARY, 2024. A. C. MRIMAJUDGERuling No. 1 virtually delivered in the presence of:-No appearance for Mr. Kazungu, Learned Counsel for the Applicant/1st Defendant.No appearance for the Plaintiff.Duke – Court Assistant.