[2022] KEHC 10770 (KLR)

Busia Sugar Industry Limited v Agriculture & Food Authority & another (Petition 3 of 2017) [2022] KEHC 10770 (KLR) (18 May 2022) (Ruling)

Neutral citation: [2022] KEHC 10770 (KLR)

Republic of Kenya

In the High Court at Busia

Petition 3 of 2017

JR Karanja, J

May 18, 2022

Between

Busia Sugar Industry Limited

Petitioner

and

Agriculture & Food Authority & another

Respondent

Ruling

1. The petition at hand was filed on 27th March 2017 together with the notice of motion dated the 27th March 2017 and revolves around the provisions of the Constitution of Kenya, 2010, the Crops Act No.16 of 2013 and the Agriculture Fisheries & Food Authority Act No.13 of 2013. It related to a proposed stakeholder meeting scheduled for 13th May 2016, the implementation of the directives given by the court in a judgment delivered on 2nd February 2017 in Busia Petition No.2 of 2016 and the alleged-illegal and unprocedural grant of registration to West KenyaSugar Company Ltd by the Agriculture and Food Authority.

2. In the petition, the petitioner Busia Sugar Industry Ltd, enjoined the Agriculture and Food Authority as the first respondent and the West Kenya Sugar Company Ltd as the second respondent.The petitioner thus seeks declaratory orders against both respondents, an order of mandamus against the first respondent and conservatory orders of an injunctive nature against the second respondent.The notice of motion filed along with the petition on 27th March 2017 was given a hearing date in the first instance on 20th July 2017 but was never heard on that day or any other subsequent dates and remains pending to date.

3. On 7th May 2018, the petitioner sought leave to amend the petition but at the instance of the second respondent, the court directed that the formal application be made. Accordingly, the petitioner, on the 26th September 2018, filed a second notice of motion dated 24th September 2018, for leave to amend the petition and to enjoin the National Environment Management Authority (NEMA) as the third respondent. This application is also pending hearing and determination.

4. However, on the 11th December 2018, the petitioner filed a notice of withdrawal dated 3rd December 2018, in favour of the first respondent. Therefore, the petition remained a dispute between the petitioner and the second respondent only. It became a “war” or “sugar war” between two sugar production companies leading to the second respondent “firing” the first shots in the form of the present preliminary objection dated 18th November 2020 and filed on 19th November, 2020 and the notice of motion dated 20th January 2021, which was heard and determined by this court on 18th May 2021.

5. Thereafter, on the 14th July 2021, the court directed that the preliminary objection be heard in priority to the pending application dated 27th March 2017 and 24th September 2018 respectively and that the objection be canvassed by way of written submissions.Accordingly, the petitioner’s submissions in opposition to the objection were filed on 22nd September 2021 and 24th September 2021 by HMS Advocates LLP, while those of the second respondent in support of the objection were filed on 16th November 2021 by Olendo, Orare & Samba LLP.

6. Basically, the objection stands on three (3) grounds viz:-[1]That, the petition is “res-judicata” in thedecision in Bungoma E & L courtConstitutional Petition No.6 of 2016(West Kenya Sugar Co. Ltd Vs. BusiaSugar Industries and 2 others) andtherefore this court lacks jurisdictionto entertain it.[2]That, the petitioner lacks a cause ofaction as the foundation of this entirePetition was vitiated by the decision inBungoma E & L Court ConstitutionalPetition No.6 of 2016 (West Kenya SugarCo. Ltd Vs. Busia Sugar Industries and 2Others).[3]That, this court entertaining this matterwould in effect be sitting as anAppellate Court on a decision of a court of concurrent jurisdiction.

7Clearly, ground one, is the substratum of the objection inasmuch as it raises issues of “res-judicata” and the jurisdiction of this court to deal with the petition.Grounds two and three are merely pedestrian fully dependant on grounds one which germinates the actual issues for determination or from which the basic issues for determination evolve.Both parties have fully argued and ventilated their respective position with regard to the issues for determination through their respective submissions.

8. The pre-requisite question is whether the objection is competent and proper before the court. The answer is discernable from the leading case of Mukisa Biscuits Manufacturing Co. Ltd. Vs. West End Distributors (1960) EA 696, where it was held that:-“a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit........ It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial direction.”

9. It cannot be gainsaid that the issues raised in the objection are issues of law capable of disposing of the petition if found to be sustainable in the present circumstances.Res-judicata” is fundamentally a jurisdictional issue which must be resolved before the merit of the matter at hand is considered. This is because “res-judicata” goes to the root of the matter. Whereas jurisdiction is a creation of statute and can be raised at any time, “res-judicata” is a question of pleadings and can be raised only at the trial as was done herein by the second respondent.

10. The preliminary objection at hand is therefore proper and competent before the court and what emerges as the basic issue for determination is whether the present petition is “res-judicata” on the basis of a previous suit between the parties herein being Bungoma Environment and Land Court Constitutional Petition No.6 of 2016, in which the second respondent sued the petitioner and others.Reference has herein been made by the second respondent to another suit being Busia Petition No.2 of 2016, but the present objection relates only to the Constitutional Petition No.6 of 2016 at the Bungoma Environment & Land Court.

11. Going by the notice of preliminary objection dated 18th November 2020 and filed herein on 19th November 2020, the inclusion of the aforementioned Busia Petition No.2 of 2016 in the objection appears to have been an afterthought or an outright mistake. Be that as it may, “res-judicata” is a latin phrase meaning “a matter decided”. It is a fundamental principle of law which may be raised as a valid defence and being a doctrine of general application can be raised in any suit including a petition such as the present one.

12. S.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.”Clearly, this provision of the law provides for circumstances under which the doctrine of res-judicata would apply. Thus, the parties and issues must be the same and the matter must be one which the court has fully heard and determined. Whether or not a matter is res-judicata is a question which would involve a look at the cause of action and the relief claimed together with the pleadings for an effective answer.

13. It was therefore incumbent upon the second respondent to establish the existence of a previous suit between itself and the petitioner with or without other parties in which the issues and parties were similar and which was heard and decided by a competent court. Further, that this petition involves similar parties and issues as in the previous suit which was concluded on the merits and with finality.It is obvious that the success of a plea of res-judicata becomes a complete bar to the jurisdiction of a court in dealing with a matter.

14. The second respondent raised the plea in its response to the petition dated 3rd November 2020 (see, paragraph 14 of the response) and in the notice of preliminary objection dated 18th November 2020. Most importantly, the plea as raised in the response relates to a previous petition No.2 of 2016, but in the notice of preliminary objection, the plea relates to Petition No.6 of 2016 filed at the Bungoma Environment and Land Court. Both petitions have also been referred to in both parties written submissions. However, the second respondent placed more emphasize on Busia Petition No.2 of 2016, which clearly is not the subject of the present preliminary objection.

15. The two previous petitions together with the present petition No.3 of 2017, are all Constitutional petitions which begs the question whether “res-judicata” applies to such petitions. The answer is found in the decision of the Supreme Court of Kenya in the case of John Florence Maritime Services Ltd & Another Vs Cabinet Secretary for transport and Infrastructure & others (2021) eKLR, where it was affirmed that the doctrine applies to Constitutional petitions. The court stated as follows:“We reaffirm our position as in the Muiri Coffee Case that the doctrine of res-judicata is based on the principle of Finality which is a matter of public policy. The principle of Finality is one of the pillar upon which our judicial system is founded and the doctrine of res-judicata presents a multiplicity of suits which would ordinarily clog the courts, apart from occasioning unnecessary costs to the parties, and it ensures that litigation comes to an end and the verdict duly translates into fruit for one party and liability for another party conclusively.”

16. The Supreme Court went on to state that:-“If we were to find that the doctrine does not apply to Constitutional litigation the doctrine may very well lose much of its legitimacy and validity. We say this in light of the fact that Constitutional tenets permeate all litigation starting with the application of Article 159 of the Constitution in both civil and criminal litigation and its application now embedded in all procedural statutes.Further Article 50 on the right to fair hearing and Article 48 on access to justice are fundamental rights which every litigant is entitled to. Such holding may very well lead to parties that whenever they need to circumscribe the doctrine of res-judicata, they only need to invoke some Constitutional provision or other.”

17. The foregoing decision clearly confirms and clarifies that the doctrine of “res-judicata” applies to Constitutional petitions and alluded to the position that the plea of “res-judicata” is anchored on evidential facts and that such facts ought to be properly raised in a matter. Herein, the plea was properly raised in the notice of preliminary objection relating to the Bungoma Petition No.6 of 2016 and in paragraph 19 of the second respondent’s response to the present petition. Not to mention paragraph 14 of the response which is specific to Busia Petition No.2 of 2016.

18. However, as noted hereinabove, Busia Petition No.2 is irrelevant for the purposes of the material notice of preliminary objection and for avoidance of doubt it must be noted that the objection is specific and relates to Bungoma petition No.6 of 2016. It must be further noted the present petition is the one dated 9th May 2016 and filed herein on 27th March 2017. Therefore, in determining whether or not the present petition is “res-judicata” via-a-vis the former petition No.6 of 2016 at the Bungoma Environment and Land Court, the first port of call would be an examination of the parties in both suits followed by an examination of the issues raised in both cases.

19. With regard to the present petition the parties are Busia Sugar Industry Ltd as the petitioner, the Agriculture & Food Authority as the first respondent and West Kenya Sugar Co. Ltd as the second respondent. It is noteworthy that the Agriculture & Food Authority has since ceased being a party to the suit by dint of the withdrawal notice dated 3rd December 2018, filed herein by the petitioner on 11th December 2018. Currently, the actual parties to this petition are the petitioner and the second respondent. There is an application by the petitioner pending determination for inclusion of an additional party to the petition and for an amendment of the petition.

20. In Bungoma Petition No.6 of 2016, as may be discerned from the material availed herein, the parties to the petition included the second respondent herein as the petitioner as well as the petitioner herein as the first respondent. There were two additional parties other than the second respondent and petitioner herein. The other additional parties who were relevant to the Bungoma petition No.6 of 2016 are not parties to this petition. Therefore, the raising of res-judicata on account of similarity of the parties in both petitions is a misconception and unsustainable in the circumstances.

21. With regard to the issues raised in both petitions, a perusal of the pleadings and prayers clearly indicate that these were as different as day and night in principle. Further, the issues in this petition largely involve the second respondent if not solely, while those in the previous petition No.6 of 2016 at Bungoma largely involved other entities who were parties to the petition more than the petitioner herein who was at the mercy of those other entities in starting and operating its sugar factory much to the chagrin of the second respondent.In a nutshell, the issues in both petitions are different and distinct. In the circumstances, the doctrine of “res-judicata” would not apply to this petition.

22. In sum, the grounds for the preliminary objection dated 18th November 2020, are wanting on merit and are hereby overruled and dismissed with costs to the petitioner.The matter be given a mention date for directions with regard to the applications dated 27th March 2017 and 24th September 2018, respectively.Ordered accordingly.

J.R. KARANJAHJ U D G E[DATED & DELIVERED THIS 18TH DAY OF MAY 2022]