[2017] KEHC 9486 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NUMBER NO. 235 OF 2015

IN THE MATTER OF THE ADVOCATES ACT, CHAPTER 16 OF THE LAWS OF KENYA

AND

THE CONSTITUTION OF THE REPUBLIC OF KENYA

AND

IN THE MATTER OF THE PETITION OF AHMEDNASIR ABDULLAHI TO BE ADMITTED TO THE ROLL OF ADVOCATES

AND

IN THE MATTER OF AN APPLICATION TO HAVE AHMEDNASIR ABDULLAHI STRUCK OUT OF THE ROLL OF ADVOCATES AND THE ROLL OF SENIOR COUNSEL

BETWEEN

BRYAN YONGO…………...…………………………..PETITIONER

VERSUS

ATTORNEY GENERAL………………………..1ST RESPONDENT

COUNCIL FOR LEGAL EDUCATION…..……2ND RESPONDENT

AHMEDNASIR ABDULLAHI…….……….….3RD RESPONDENT

RULING

1. The petitioner Bryan Yongo filed the present constitutional petition on 5th June 2015 seeking the following orders:-

a) the court be pleased to declare that the certificate of completion of pupillage dated 26th November 1992 upon which the 3rd respondent Ahmednasir Abdullahi petitioned for admission as an advocate was a nullity and void ab initio having been issued by an unqualified person;

b) the said certificate of completion bore a signature that was not that of the deceased Peter Simani, the alleged pupil master;

c) the certificate be struck out as it was a forgery as the 3rd respondent never attended pupillage and neither was he issued with a certificate of completion as was required by the PART IV of the Advocates Act (Cap 16).

d) the 3rd respondent be struck off from the Roll of Advocates;

e) it be declared that the 3rd respondent was not qualified to practice as an advocate and was not qualified to retain the title of Senior Counsel within the meaning of the Advocates Act, and should be struck off the Roll of Senior Counsel;

f) the court does direct that all pleadings and documents signed and/or executed by the 3rd respondent in all matters pending before all courts and tribunals be expunged and/or struck out;

g) all pleadings, applications, judgments, and any other documents drawn and filed by the 3rd respondent purporting to be an advocate be expunged, set aside and declared null and void;

h) it be declared that Ahmednasir Abdullahi and Associates was registered in breach of section 32 of the Advocates Act; and that

i) appropriate disciplinary action and/or sanction be meted out against the 3rd respondent.

2. The substance of the petitioner’s case was that the 3rd respondent never attended as a pupil, and never received instruction in the proper business, practice and employment of an advocate; that the certificate of completion of pupillage dated 26th November 1992 upon which the 3rd respondent petitioned for admission as an advocate and which bore the signature of the late Peter Simani (the alleged pupil master) was not in fact signed by the said Peter Simani; that if the said certificate was signed by the late Peter Simani the same was null and void as the said the late Peter Simani was an unqualified person within the meaning of section 34 of the Act during the year 1992 as he had not at the time taken out a practicing certificate as confirmed by the Law Society of Kenya in its letter dated 18th July 2013; that because the late Peter Simani was not qualified to practice at the time he could not have been qualified to impart instructions to the 3rd respondent; and that, now that the 3rd respondent never attended pupillage and was never issued with a certificate of completion of pupillage as required under the Advocates Act, he was not a qualified advocate under the Act, and was therefore engaging in practice in contravention of the Act.

3. The 3rd respondent practices as an advocate with the firm of Ahmednasir Abdullahi & Associates, and has been conferred upon the honour of Senior Counsel. It was the petitioner’s case that the 3rd respondent was not qualified to practice as a lawyer, and therefore did not qualify to be Senior Counsel. He accused the 3rd respondent of forgery, making false documents, forgery of judicial and official documents, procuring execution of documents by false pretenses, making documents without authority, personation of a person named in a certificate and lending certificate for personation.

4. The petition was filed under Articles 2, 3, 10, 21, 22, 23, 159, 160, 165, 168, 171, 172, 249, 253, 258and259 of the Constitution of Kenya 2010, the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules and the Advocates Act (Cap. 16).

5. On 5th November 2015 the 3rd respondent filed a motion dated 3rd November 2015 seeking to strike out the suit with costs on the grounds that:-

(a) the matters raised in the petition were res-judicata as the same were raised, heard and determined in Nairobi High Court Civil Case No. 310 of 2013 (O.S.);

(b) the petition did not disclose violation or contravention of any provision of the Constitution, neither did the petition plead any violation of any of his rights nor seek any constitutional redress;

(c) the petitioner had no justifiable cause of action against the 3rd respondent;

(d) the petition had nothing to do with defending and upholding the Constitution, the Advocates Act or any public interest but had everything to do with the petitioner settling scores and pursuing obsessive personal vendetta against the 3rd respondent which in itself was a gross abuse of the judicial process and a waste of judicial time and resources;

(e) the petitioner had no locus standi to file the petition against the 2nd respondent; and that the petition was frivolous, scandalous and vexatious as it had no merit whatsoever against the 3rd respondent, or at all.

6. Along with the motion was the 3rd respondent’s supporting affidavit. The petitioner filed a replying affidavit on 4th November 2016 denying the matters raised in the motion. The 3rd respondent filed a further affidavit.

7. On 19th July 2017 the court directed that the motion be heard first. This ruling is on that motion. Mr. Havi appeared for the petitioner, Mr. Bwire appeared for the 2nd respondent Council for Legal Education and Mr. Sagana appeared for the 3rd respondent. Submissions were filed and authorities made reference to. Counsel then made oral submissions.

8. In opposing the motion, Mr. Havi submitted that the matter in Nairobi HCCC No. 310 of 2013 (OS) was a civil claim, not a constitutional claim; that the substantive claim was not heard and determined on merits, instead the claim was dealt with and disposed of on a technicality; that the present claim was a constitutional one that raised substantial and public interest issues that should go to trial; that the plea of res judicata did not operate where the previous suit was not heard and determined on merits; and that, in constitutional matters an issue could be relitigated if it was not previously substantially dealt with. Counsel relied on a number of decided cases, including Okiya Omtatah Okoiti & Another –v- AG & 6 Others [2014]eKLRandCommunications Commission of Kenya & 5 Others –v- Royal Media Services Ltd & 5 Others [2014]eKLR. Mr. Bwire for the 2nd respondent, in opposing the motion, took the position that the petition raised matters of profound public interest affecting legal education; that these matters should be heard and determined on merits. He pointed out that his client was not a party in the matter above, which matter was, in any case, decided upon a preliminary objection.

9. The critical issue to be decided is whether this petition raises matters that were heard and determined in Nairobi HCCC NO. 310 of 2013. In arguing that this claim was res judicata, Mr. Sagana highlighted the parties, pleadings, evidence, and the prayers in the two matters and submitted that the parties were the same, the issues in both cases were directly and substantially the same and the prayers were also the same. He urged the court to find that the determination in the earlier case bound the parties, and the matter could not be relitigated.

10. Under section 7 of the Civil Procedure Act:-

“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.”

11. Nairobi HCCC No. 310 of 2013 (OS) was brought by the petitioner against the Chief Justice, Chief Registrar High Court of Kenya, Attorney General, the Law Society of Kenya, 3rd respondent, and Peter Simani Advocate. The present petition was by the petitioner against the Attorney General, Council of Legal Education and the 3rd respondent. Peter Simani advocate has since died. It is not disputed that the claim in the petition and that in the originating summons were the same. The prayers were also the same. The petitioner in either case complained that the 3rd respondent did not attend pupillage, and, if he did, it was with an advocate who at the time did not have a practicing certificate; that the certificate of completion of pupillage that the 3rd respondent presented, and on basis of which he was admitted as an advocate, was a forgery. He wanted the 3rd respondent to be struck off the Roll of Advocates as he was not a qualified advocate, and that he should also be struck of the Roll of Senior Counsel to which he had been admitted. Lastly, that he should be disciplined. The originating summons was brought under sections 12, 13, 15, 16, 17, 18,31, 32, 33, 34, 56, 70and85of the Advocates ActandArticles 3, 10, 22, 23, 48, 165and258 of the Constitution. The same provisions of the Act and the Constitution were invoked in the present petition. In the originating summons the petitioner went to the High Court’s Civil Division but invoked the provisions of the Constitution as the basis for his claim. The 3rd respondent raised a preliminary objection that the suit was time-bared under section 70 of the Advocates Act which provides that:

“Subject as hereinafter provided, no advocate shall be liable to have his name struck off the Roll on account of any defect in his admission and enrolment, unless the application to strike his name off the Roll is made within twelve months after the date of his enrolment:

Provided that this section shall not apply to any case where fraud is proved to have been committed in connection with the admission or enrolment.”

The court noted that the 3rd respondent was admitted to the Roll on 18th March 1993 and the complaint in the suit had been made in 2013, well beyond the statutory period of limitation of 12 months. As regards the allegation of fraud, the court referred to section 4(2) of the Limitation of Actions Act (Cap 22) and found that an action founded on the tort of fraud should be brought within three years. It was observed that the petitioner had pleaded that he was all the time aware of the alleged fraud. Therefore, the complaint of fraud was also statute-barred.

12. This Court and the one that made these findings have concurrent jurisdiction. This court cannot sit in judgment over these findings. If the petitioner was not satisfied with those findings he ought to have challenged them on appeal in the Court of Appeal. He cannot re-open them by a subsequent suit. He cannot even claim that the petition was a constitutional one and the earlier one was not. This is because in either case the same constitutional provisions were invoked. Further, in either case, the 3rd respondent, sought refuge in statutory provisions whose constitutionality was not challenged. In short, the 3rd respondent in the previous suit brought by the petitioner in regard to the same claim, successfully pleaded limitation and the court brought the suit to an end. It is trite that the plea of res judicata raises a pure point of law where the facts are not contested and, if determined in favour of the respondent, would conclude the litigation (Mukisa Biscuit Manufacturing Company Ltd –v- West End Distributors Ltd [1969] EA 696; Omondi –v- National Bank of Kenya Ltd & Others [2001]KLR 579). This court has no jurisdiction to re-open the petitioner’s claim as pleaded in the petition. In reaching this decision I have considered the following observation by the Court of Appeal in Greenfield Investments Limited –v- Baber Alibhai Manji, Civil appeal No. 1600 of 1997:

“Where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject matter which might have been brought forward as part of the subject in contest but was not brought forward only because they have, from negligence, inadvertence, or even accident, omitted part of their case.Res judicata applies also to every point which properly belonged to the subject of litigation and which the parties exercising due diligence, might have brought forward at the time. See Henderson –v- Henderson (1843) 3 Hare 100 at 115. ”

Further, in law any litigation has to come to an end. Once the decision that this suit was statute-barred was reached this court cannot re-open it, unless the decision has been set aside. Any decision, if not set aside, can only be challenged on appeal except in case of review (Benson Ngugi –v- Francis Kabui Kinyanjui & Others, [1989]KLR 146).

13. It is important to point out that in Okiya Omtatah Okoiti case, the High Court found that the petition did not raise the same issues that had been raised in J.R. No. 317 of 2013. The court observed as follows on the principles governing res judicata in constitutional matters:

“Whereas these principles have generally been applied liberally in civil suits, the same cannot be said of their application in constitutional matters. I say so because, in my view, the principle of res judicata can and should only be invoked in constitutional matters in the clearest of cases and where a party is relitigating the same matter before the constitutional court and where the court is called upon to redetermine an issue between the same parties and on the same subject matter. While therefore the principle is a principle of law of wide application, therefore it must be sparingly invoked in rights based litigation and the reason is obvious.”

I find nothing in these observations that would support the petitioner’s plea to rehear this matter which the court of competent and concurrent jurisdiction has heard and determined.

14. In Communications Commission of Kenya & 5 Others –v- Royal Media Services Limited and 5 Others Case, the Supreme Court considered the principle of issue estoppel. It found that the High Court had dealt with a matter which had been heard and determined by the Public Procurement Administrative Review Tribunal; that instead of seeking judicial review the 1st, 2nd and 3rd respondents had gone to the High Court, in the guise of a constitutional claim, to relitigate and challenge a decision of facts and issues finally determined by the Tribunal. It found that the strategy was mischievous. The Supreme Court, however, reiterated that the court has to be careful in dealing with common law principles of issue estoppel and res judicata where its intervention was required in a claim of violation of a fundamental right by a state organ. At the same time, it acknowledged that it is in the interest of the public at large that a finality should attach to the binding decisions pronounced by courts of competent jurisdiction, and it is also in public interest that individuals should not be vexed twice over with the same bond of litigation. It is clear that in the instant case, the petitioner, who ought to have appealed the decision by the High Court, has come to relitigate before this court by disguising that he has a constitutional claim.

15. The finding on res judicata should bring this matter to a close. There were other pertinent findings by the court in Nairobi HCCC No. 310 of 2013 (OS) and also by the subordinate court in Nairobi CM Misc. Criminal Application No. 1082 of 2016 in regard to this claim that the petitioner, if he was indeed unhappy, ought to have appealed against instead of filing the instant petition.

16. Lastly, it worthy to note that filing several suits or applications, before the same court or in different courts, seeking the same orders is an abuse of the process of the court (National Bank of Kenya Ltd –v- John Odawa Oluoch HCCC No. 205 of 1997 at Kisumu; Theluji Dry Cleaners Ltd –v- Muchiri & Others [2002]2 KLR 764andCharles Mugunda Gacheru –v- The Senior Resident Magistrate & Others [2005] LLR 7602).

17. In conclusion, the preliminary objection by the 3rd respondent succeeds with costs. The petition is struck out with costs.

DATED and DELIVERED at NAIROBI this 5TH day of OCTOBER 2017

A. O. MUCHELULE

JUDGE