[2022] KEHC 3288 (KLR)

Business Partners International Kenya (Ii) Limited v Otundo & another (Miscellaneous Civil Suit E567 of 2021) [2022] KEHC 3288 (KLR) (Commercial and Tax) (8 July 2022) (Ruling)

Neutral citation: [2022] KEHC 3288 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Miscellaneous Civil Suit E567 of 2021

A Mshila, J

July 8, 2022

Between

Business Partners International Kenya (Ii) Limited

Applicant

and

Bernard Onkundi Otundo

1st Respondent

Directorof Physical Planning-Machakos County

2nd Respondent

Ruling

1. The applicant raised a preliminary objection dated February 18, 2022 on the following grounds;a.The Application dated August 2, 2021 is fatally defective and bad in law as it offends the provision of section 6 of the Civil Procedure Rules, 2010. b.There is a suit pending court determination in Machakos HCCC No. 5 of 2020 between the parties herein touching on the same subject matter.c.The Court lacks jurisdiction to hear and determine this matter since the same raises matters pertinent to the disposal of the suit premises already in issue in Machakos HCCC No. 5 of 2020. d.The instant Application and the entire suit is brought in bad faith, is frivolous, vexatious and an abuse of the court process hence a good candidate for striking out with costs.

2. The Application dated August 2, 2021is an Originating Summons brought under the provisions of sections 98 (1) (c) of the Land Act, Order 37(1) Civil Procedure Rules 2010 and section 3A of the Civil Procedure Act. The Application was supported by the sworn Affidavit of Michael Muthengi and the Applicant sought the following orders;a.The court to order that thechargor/ 1st respondent to execute the consent required to permit sub-division of Property known as Land Reference No. 12610/44 (Original Number 12610/1/19) within 7 days of Court Order.b.In the event the chargor/ 1st respondent fails, neglects and or refuses to execute the consent for sub-division of the property known as Land Reference No. 12610/44 (Original Number 12610/1/19), the Director of Physical Planning Machakos County be directed to dispense with the requirement of the said consent to be executed by the chargor/ 1st defendant and allow the Chargee to exercise the powers pursuant to the Power of Attorney granted under Clause 31 of the Charge, and allow the chargee/ applicant to execute the said consent of sub-division.c.Upon satisfaction of prayers (a) or (b) above, the Director of Physical Planning-Machakos County be compelled to approve the sub-division as per the submitted mutation form and proceed with the sub-division of the Suit Property to enable the chargee/ applicant exercise its rights pursuant to section 98 (1) (c) of the Land Act, 2012. d)The Respondents do pay to theapplicant the costs of this suit.

APPLICANT’S CASE 3. The Applicant submitted thatsection 6 of the Civil Procedure Act forbids the Court from proceeding with the trial of any suit or proceedings wherein the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties or between parties under whom they or any of them claim, litigating under the same title , where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed as was enumerated in the case of Republic v Paul Kihara Kariuki, Attorney General &others ex parte Law Society of Kenya[2020] eKLR.

4. It was the applicant’s case that the suit herein, Miscellaneous Civil Suit No. E567 of 2021 violates the provisions ofsection 6 of the Civil Procedure Act as the same was instituted after a similar case had been previously filed in the High Court at Machakos being Civil Suit No. 5 of 2020.

5. Civil Suit No. 5 of 2020 was instituted by way of Plaint dated February 20, 2020and filed on even date by the Applicant who is the Plaintiff therein. The current suit herein was instituted by way of Originating Summons dated August 2, 2021and filed on even date by thechargee.

6. It is clear that Civil Suit No. 5 of 2020 was instituted before the matter herein and the same is still on going as it is yet to be dispensed with. This therefore means that there are two suits that exist at the same time and that were filed consecutively thus satisfying the first principle of ‘sub-judice’.

7. The applicant went further to submit a matter in issue is considered to be directly and substantially the same where the identity of the matter in issue in both suits or rather the whole subject matter in both proceedings is identical.

8. The term "matter" alludes to the subject matter for determination in a legal proceeding and not the legal proceeding in itself. These were the sentiments in Constitutional Application 2 of 2011 - In the Matter of Interim Independent Electoral Commission[2011] eKLR wherein it was held that;“.. we do not think that the word 'matter’...means a legal proceeding, but rather the subject matter for determination in a legal proceeding. In our opinion there can be no matter...unless there is some right, duty or liability to be established by the determination of the Court.”

9. The subject matter in Civil Suit No. 5 of 2020 filed at the High Court in Machakos is similar to the subject matter of the suit herein being the property known as Land Reference No. 12610/44 (Original Number 12610/1/19) and the subdivision of the said property thereof.

10. From the foregoing, it is clear that by adjudicating upon the issues raised in Civil Suit No. 5 of 2020, the issues raised in the instant suit herein would be addressed and by litigating the two suits parallel to each other would be violating the provisions of section 6 of the Civil Procedure Act.

11. The Preliminary Objection raises issues that are purely points of law subject tosection 6 of the Civil Procedure Act and the points raised therein do not result in the court ascertaining the facts of the case but rather the legal issues that go to the root of whether there is a competent suit before the court and whether the court has or lacks the jurisdiction to hear and determine the matter herein.

RESPONDENT’S CASE 12. The respondent in response submitted that the present suit by the chargee by way of Originating Summons is seeking for orders that will enable it to exercise its rights of sub-division of the suit property, which rights have never been contested and the only reason the applicant was constrained to approach this court was to compel the 1st respondent/ chargor to execute the consent required for such sub-division and or for the Director of Physical Planning be directed to dispense with the requirement of the consent to be executed by the 1st respondent.

13. Therefore, the cause of action herein and the relief sought are substantially different to the 1st respondent's Cause of Action in Machakos HCCC No. 5 of 2020 in that suit was seeking to restrain the auction of February 25, 2020 and valuation used in the said auction challenged whereas in the present suit the applicant is seeking the aid of the court to exercise its uncontested right of sub-division of the suit Property as provided in section 98 (1) (c ) and the only reason the Chargee has been constrained to seek the aid of this court is owing to the 1st respondent frustrating such sub-division by declining and blatantly refusing to execute the consent necessary to allow such sub-division.

14. The respondent relied on the case of Naisianoi Olonge Jek & another v Salau Ole Sokon Limurinke & another2020 eKLR wherein the Court held that: -“Suffice it to say that I have seen a copy of the plaint dated June 13, 2014on the one hand constituted on page 38 of the record of appeal. The plaintiffs therein are the appellants and persons not before this court, while the 1st respondent is sued as the defendant. The appellants sought for an injunctive order and damages against the 1st respondent for unlawful trespass, plus cost of the suit and interest thereon.For comparison purposes, I also looked at the Notice of Motion datedJune 9, 2013filed by the 1st respondent and against the appellants and the 2nd respondent in Senior Resident Magistrate’s Court Misc. Application No. 22 of 2014 seeking an order for adoption of the decision of the District Land Registrar-Kajiado as an order of the court.Upon re-evaluating the two separate pleadings, it became clear that whereas the parties and subject matter were substantially the same, the parties were neither litigating under the same titles nor seeking related orders nor were the issues in dispute similar. On the part of the 1st respondent, it is apparent that his Misc. Application did not constitute a suit in the real sense of the word but was merely an application seeking adoption of an order already in place. The appellants on their part had brought a cause of action in the nature of unlawful trespass.”

15. It was therespondent’s submission that it is clear beyond any doubt that the Preliminary Objection as filed must fail in its entirety as section 6 would apply only if there is identity of the matter in issue in both the suits, meaning thereby, that the whole of the subject- matter in both the proceedings is identical.

16. The Preliminary Objection as raised is unmeritorious and ought to be dismissed with costs.

ISSUES FOR DETERMINATION 17. The Preliminary Objection and the written submissions have been well considered and the following issue has been framed for determination;a.Whether the Preliminary Objection should be upheld;

ANALYSIS 18. Pursuant to the provision of Order 2 Rule 9 of the Civil Procedure Rules, a Preliminary Objection should be raised on a pure point of law which has been pleaded, or which arises by clear implication out of the pleadings and which if argued as a preliminary point may dispose of the suit. In the case of Mukhisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd 1969 EA 696; the Court defined;“...is in the nature of what used to be a demurrer. 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 discretion”.

19. A Preliminary Objection cannot be based on disputed facts. It is not in dispute that there exists another suit between the same parties over the same subject matter. The Applicant annexed a copy of the Plaint of Machakos Civil Suit No. 5 of 2020.

20. The relevant provision on the sub judice rule is found at section 6 of the Civil Procedure Act which stipulates thus:“No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.”

21. The Supreme Court of Kenya inKenya National Commission onHuman Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties)[2020] eKLR pronounced itself on the subject of sub judice as follows;“The term ‘sub-judice’ is defined in Black’s Law Dictionary 9th Edition as: “Before the Court or Judge for determination.” The purpose of the sub-judice rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the Court process and diminish the chances of courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter. This means that when two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. A party that seeks to invoke the doctrine of res sub-judice must therefore establish that; there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives.”

22. It is obvious from the above that the sub judice rule only applies where another “suit or proceeding is pending” in another court involving the same parties and over the same subject. The court has perused the annexures herein which relate to the suits previously instituted by the parties herein over the suit property. The parties in the previously instituted suit at the High Court at Machakos, Civil Suit No. 5 of 2020, are Bernard Onkundi Otundo (plaintiff) versus Business Partners International Kenya (II) Limited (1st defendant) and Garam Investments Limited (2nd Defendant)

23. On the other hand, the parties in the instant suit herein are; Business Partners International Kenya (II) Limited (applicant/charge) versus Bernard Onkundi Otundo (1st respondent/chargor) and The Director of Physical Planning - Machakos County (2nd respondent).

24. It is noteworthy that there is an addition of a new party to the current suit. The mere addition of a party or parties to a suit does not alter the substance of the suit as was held in RepublicvPaul Kihara Kariuki, Attorney General & 2 others Ex parte Law Society of Kenya [2020] eKLR (supra)

25. The orders sought in Civil Suit No. 5 of 2020 challenge the auction of the suit property L.R. Number 12610/44 Athi River Area, Machakos County with regard to the Statutory Notices that were issued. On the other hand, the orders sought by the Respondent in Originating Summons dated August 2, 2021 seeks to sub-divide the suit property. The Respondent seeks to have the Applicant ordered to execute the consent necessary to allow such sub-division.

26. Going by the Supreme Court decision(Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties)(supra)), ; the suits are found to be as between the same parties or those claiming under them over the same subject matter and this court finds that the outcome of one suit may affect the outcome of the other suit which may result in the courts to issue conflicting decisions over the same subject matter.

FINDINGS AND DETERMINATION 27. In light of the forgoing this court makes the following findings and determination;i.This court finds that this instant suit offends the doctrine of sub judice.ii.The Preliminary Objection is found to be merited and is hereby is upheld.iii.The instant Originating Summons dated August 2, 2021 is hereby stayed to await the determination to be made in the earlier suit namely Machakos HCCC No. 5 of 2020;iv.The Objector is hereby awarded the costs of the Preliminary Objection.

Orders Accordingly.DATED, SIGNED AND DELIVERED ELECTRONICALLY AT NAIROBI THIS 8TH DAY OF JULY, 2022. HON. A. MSHILAJUDGEIn the presence of;Miss Mwangi for the Respondent (P.O.)Muthomi holding brief for Ratemo for the 1st RespondentJasmin ---------------------------Court Assistant