[2022] KEHC 13629 (KLR)

Charo v University Of Nairobi (Petition E140 of 2022) [2022] KEHC 13629 (KLR) (Constitutional and Human Rights) (12 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13629 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Petition E140 of 2022

HI Ong'udi, J

October 12, 2022

Between

Wasley Mdawida Charo

Petitioner

and

University Of Nairobi

Respondent

Ruling

1. The petitioner vide the petition dated March 31, 2022 seeks the following orders:a.A declaration that the respondent’s actions have infringed on the petitioner’s right to education and right to a livelihood and violated his constitutional rights under article 28, 29(d), 35(1), 43(1)(f) and 47(1) of the Constitution and breached section 4(1) of the Access to Information Act, 2016. b.An order bringing into this honourable court for the purposes of being quashed and quashing the decision by the respondent to demand that the petitioner pays to the respondent Kshs 1,000,000/= before he can be allowed to access his diploma certificate and the relevant transcript.c.An order to compel the respondent to remove the Kshs 1,000,000/= bill posted as legal fees on the petitioner’s fees records at the respondent pursuant to the letter dated December 7, 2021 to enable the petitioner to access his diploma certificate and relevant transcript.d.An award of general damages against the respondent for the violation of the petitioner’s constitutional rights.e.Costs of this petition plus interest at court rates form date of filing suit until full payment.

2. Upon service of the pleadings the respondent filed a preliminary objection (P O) dated April 14, 2022 on the following grounds:a.That the petitioner has not come to court with clean hands from the word go, the subject matter being an item of expenditure in Nairobi HCCC Miscellaneous Application No 63 of 2018, Wesley Mdawida Charo Versus University of Nairobi.b.That the jurisdiction of this honourable court has been prematurely invoked and the entire petition and orders sought are an abuse of the court process.c.That right to education and livelihood under articles 28, 29(d), 35(1), 43(1)(f) and 47(1) of the Constitution of Kenya 2010 and section 4(1) of the Fair Administrative Act, 2015 and section 4(1) of the Access to Information Act 2016 are not absolute rights but subject to limitation in the circumstances provided for under article 24 of the Constitution of Kenya 2010. d.That, in any event, the petition is pre-mature, ill advised and the petitioner is yet to exhaust all the internal and alternative dispute resolution mechanism under section 9 (2) (3) and (4) of the Fair Administration Action of 2015 and article 159(2) of the Constitution of Kenya 2010.

3. The petitioner responded vide the following grounds of opposition dated May 20, 2022;a.The petitioner has humbly come to court in good faith for justifiable orders distinct form Nairobi HCC Misc Application No 63 of 2018, Wesley Madawida Charo v University of Nairobi.b.The jurisdiction of this court is properly invoked and the court is unfettered in the exercise of its constitutional and statutory powers.c.That the limitations alleged in ground 3 of the notice of the preliminary objecting are not stated, are ambiguous and unfounded for want of prior compliance with article 24(3) of the Constitution of Kenya, 2010. d.That the petition is well grounded and proper there being no qualifying avenue(s) of dispute resolution that bar or oust the entertainment of the petition herein by this honourable court.e.The grounds of the preliminary objection are evidentiary in nature.f.The preliminary objection is field to delay determination of this petition.g.The preliminary objection is meant to defeat the ends of justice.h.The preliminary objection does not lie.

4. The P O was canvassed through written submissions.

The respondent’s submissions 5. The respondent filed submissions through Mr Collins Fredrick Omondi advocate dated 31st day of 2022. Counsel referred to Nairobi HCC Misc Petition No 63 of 2018 Wesley Mdawida Charo v University of Nairobi & Commission on Administrative justice, which the respondent defended and the same was dismissed with costs. The said costs have not been settled and that is what the respondent is demanding for from the petitioner. Therefore there was no need for filing a fresh petition. He submits that the petitioner has come to court with unclean hands in view of the above.

6. Counsel contends that this matter is res judicata as the issues raised herein are similar to those in the previous petition. He relies on Henderson v Henderson (1843) 67 ER 313 as quoted with approval by the Court of Appeal in John Florence Maritime Services Limited & another v Cabinet Secretary for Transport & Infrastructure & 3 others [2015] eKLR. In the said decision the court set out clearly what res judicata is all about. It set out instances when a matter is considered as being res judicata. Counsel therefore set out the similarities between this petition and the previous one and submitted that this petition is res judicata. He relies on section 7 of the Civil Procedure Act to argue this point.

7. It is also counsel’s submission that the petitioner is still a student of the respondent and should exhaust all the internal and alternative dispute resolution mechanisms under the Universities Act. He also relied on;a.Mombasa High Court Constitutional Petition No 159 of 2018 with No 201 of 2019[2020] eKLRb.Anthony Miano v Attorney General & others [2021] eKLR.

8. The petitioner filed submissions dated June 6, 2022 by Kariuki Runo & Co Advocates. Counsel while referring to the case of Mukisa Biscuits Manufacturer & Company Ltd v West end distributors ltd[1969] E A 696 and restated by the Court of Appeal in Kigwor Company Ltd v Samedy Trading Company Ltd [2021] eKLR submitted that the points raised in the P O are not purely on law but of evidentiary nature. Referred to also is the Supreme Court case of Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 others [2015] eKLR where the court referred to instances where a P O is not permitted.

9. Counsel dismissed the respondent’s reliance on evidence from the earlier petition Misc Application No 63 of 2018 which would require the court to delve into matters of evidence as several questions would need to be answered. It was counsel’s submission that this matter is not res judicata because what the petition sought in the earlier petition was enforcement of a decision by the commission on administrative justice. Further that the principle of res judicata did not apply as a matter of course in constitutional petitions through P Os to deny a litigant an opportunity to be heard.

10. He cited John Florence Maritime Services (supra) where the Supreme Court stated;“The court when determining a constitutional petition is empowered to look beyond the process and not only examine but delve into the merits of a matter or a decision…..…..The court in hearing a constitutional petition may very well arrive at the same conclusion as the court hearing a judicial review application. However, the considerations right from the outset are different, the procedures are different, the reliefs that the court may grant are different, the court will be playing fairly different roles.We consequently arrive at the conclusion that the Court of Appeal erred in holding that the doctrine of res judicata applied to the current case.

11. Counsel contended that the respondent had failed to demonstrate the available internal and alternative dispute resolution mechanisms that would oust this court’s jurisdiction. Further that section 63 of the Universities Act No 42 of 2012 is not applicable. He argues that the right to be heard under article 50(1) of the Constitution is inalienable. He relied still on Florence Maritme Services Ltd (supra) on this.

Analysis and determination 12. I have carefully considered the preliminary objection, parties submissions, case law cited and the law. The main issue for determination is:Whether the preliminary objection raised herein meets the threshold for such

13. What constitutes a preliminary objection was set out in the case of Mukisa Biscuit Manufacturing Co Ltd(Supra) and later emphasized by the Supreme Court of Kenya in the case of Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others (2014) eKLR as follows:“(31)To restate the relevant principle from the precedent-setting case, Mukisa Biscuit Manufacturing Co Ltd v West End Distributors (1969) EA 696:“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. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration….a preliminary objection 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”.(See also Kigwor Company Ltd (supra) andIEBC v Jane Cheperenger & 2 others (supra).)

14. The respondent raised four grounds in support of his preliminary objection. Grounds 2 & 4 speak of the pre-mature filing of the petition and cannot therefore be separated. Ground 1 informed that the instant petition owing to Nairobi HCC Miscellaneous Application No 63 0f 2018,Wesley Mdawida Charo versus University of Nairobi raises an issue on a subject matter that was an item of expenditure in the said suit. Lastly ground 3 challenges the petitioner’s rights under articles 28,29(d),35(1), 43(1)(f) and 47(1) of the Constitution where it was noted that these rights were subject to limitation owing to article 24 of the Constitution.

15. Grounds 1, 2 and 4 in essence address the doctrine of res judicata and exhaustion. These three grounds do not bear factual aspects calling for proof by the parties. It is apparent therefore that the three grounds are based on the law challenging this court’s jurisdiction. This means that the threshold of a pure point of law has been met through these grounds.

16. On the other hand ground 3 challenges the petitioner’s rights which are alleged to have been violated. A determination of this allegation albeit capable of limitation under article 24 of the Constitution requires submission of the relevant material to the court to support or rebut the allegation. Evidently answering ground 3 would require this court to examine evidence adduced to make a definitive answer. This is therefore not a pure point of law. As has been discussed in the forgoing paragraph preliminary objections revolve around questions of law. These questions are determined by the application of the pertinent law and interpretation of the legal principles not facts.

17. In respect of grounds 1, 2, & 3, the preliminary objection if successful is capable of disposing of the whole matter. The question that evidently follows this conclusion is whether or not the petition invokes the legal principles captured in the three grounds thus affecting this court’s jurisdiction to entertain the matter. It is worthy to note that at this juncture the court is not concerned with the merits of the case as of yet but whether the preliminary objection is merited.

18. The Supreme Court addressing its mind on the issue of a court’s jurisdiction to entertain a matter in the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & others (2012) eKLR opined as follows:“A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsels for the first and second respondents in his submission that the issue as to whether a court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality, it goes to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings … where the Constitution exhaustively provides for the jurisdiction of a court of law, the court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can parliament confer jurisdiction upon a court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon parliament to set the jurisdiction of a court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.”

19. It is clear that the High Court under article 165(3) (d) of the Constitution has wide jurisdiction. It is however underscored above that this court’s jurisdiction apart from the Constitution can only flow from a statute. In essence, where this court finds itself lacking jurisdiction to entertain a matter it must down its tools accordingly.

The doctrine of exhaustion 20. The respondent in grounds number 2 and 4 challenged the ripeness of the instant matter in view of section 9 of the Fair Administration Action Act 2015 and article 159(2) of the Constitution. The petitioner opposed this averment stating that the respondent had failed to demonstrate the available mechanisms under section 63 of the Universities Act No 42 of 2012 for him to pursue.

21. It has been held severally that a party is required to exhaust any alternative dispute resolution mechanism before filing a matter in court. To this end the Court of Appeal in the case of Geoffrey Muthinja Kabiro v Samuel Muguna Henry (2015) eKLR observed as follows:“It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be the fora of last resort and not the first port of call the moment a storm brews within churches, as is bound to happen. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside of courts. This accords with article 159 of the Constitution which commands courts to encourage alternative means of dispute resolution.”

22. The respondent submitted that the suggested mechanism available to the petitioner before approaching this court is found under section 63 of the Universities Act No 42 of 2012. This section provides that:63. Fair administrative actionIn the performance of its functions, a University Council shall uphold the rights of any person who is likely to be affected, and shall—a.inform the person concerned of the nature of the allegations made against that person;b.afford that person adequate time to prepare and present a defence; andc.afford the person the opportunity of being heard in person.(2)A university council may act on general evidence the character or conduct of the person concerned and shall not be bound by the rules of evidence as set out in the Evidence Act (cap 80).(3)A University council shall expeditiously dispose of all matters before it and in any event, within six months.(4)No person having a personal interest or outcome in any matter before a university council shall sit as a member of the university or committee hearing the matter.

23. The respondent’s averments reveal that the impugned item of expenditure (Ksh 1000000) termed as legal fees was based on the award of costs in Nairobi HCC Miscellaneous Application No 63 of 2018. The provisions of section 63 indicated above emanate from a decision of the university council that is capable of affecting a party’s rights. The impugned decision as submitted by the respondent originated from a court decision.

24. A reading of the cited provision does not disclose whether the University Council has jurisdiction to entertain or review court orders. The provision is not exactly clear on which mechanism is available to the petitioner in the circumstances of this case. I find the pronouncement in the case of Krystalline Salt Limited v Kenya Revenue Authority (2019) eKLR relevant in light of what is before this court. The court held as follows:“What constitutes exceptional circumstances depends on the facts and circumstances of the case and the nature of the administrative action at issue. Thus, where an internal remedy would not be effective and/ or where its pursuit would be futile, a court may permit a litigant to approach the court directly. So too where an internal appellate tribunal has developed a rigid policy which renders exhaustion futile.…this court interprets exceptional circumstances to mean circumstances that are out of the ordinary and that render it inappropriate for the court to require an applicant first to pursue the available internal remedies. The circumstances must in other words be such as to require the immediate intervention of the court rather than to resort to the applicable internal remedy.”

25. It is my considered view that the alternative dispute mechanism alluded to by the respondent does not provide an adequate mechanism in which the petitioner’s grievance as presented can be adequately addressed. I say so because the provision does not address a situation where a party’s rights are affected owing to a court pronouncement. Moreover, the University Council’s jurisdiction does not include revision of court pronouncements. In light of this the doctrine of exhaustion claim cannot be sustained and hence fails.

Doctrine of res judicata 26. In view of Nairobi HCC Miscellaneous Application No 63 of 2018 the respondent argued that the petition herein offends the doctrine of res judicata. The petitioner on his part challenged this assertion arguing that the prayers, facts and circumstances in the present petition are distinct from HCC Misc Application No 63 of 2018.

27. This doctrine is provided for under section 7 of the Civil Procedure Act, cap 21 which states 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.

28. The Supreme Court in the case ofKenya Commercial Bank Limited v Muiri Coffee Estate Limited & another Motion [2016] eKLR as regards the doctrine of res judicata held as follows:“(52)Res judicata is a doctrine of substantive law, its essence being that once the legal rights of parties have been judicially determined, such edict stands as a conclusive statement as to those rights. It would appear that the doctrine of res judicata is to apply in respect of matters of all categories, including issues of constitutional rights…”

29. Likewise the Supreme Court in the case of John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others (Petition 17 of 2015) [2021] KESC 39 (KLR) (Civ) (6 August 2021) (Judgment) opined as follows:The principle of finality or res judicata is a matter of public policy and is one of the pillars on which a judicial system is founded. Once a judgment becomes conclusive, the matters in issue covered thereby cannot be reopened unless fraud or mistake or lack of jurisdiction is cited to challenge it directly at a later stage. The principle is rooted to the rationale that issues decided may not be reopened and has little to do with the merit of the decision.”

30. The Court went on to observe that:59. For res judicata to be invoked in a civil matter the following elements must be demonstrated:a.There is a former judgment or order which was final;b.The judgment or order was on merit;c.The judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; andd.There must be between the first and the second action identical parties, subject matter and cause of action.”

31. The Court of Appeal in the case of Independent Electoral & Boundaries Commission v Maina Kiai & 5 others [2017] eKLR on the same observed as follows:“The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as a pragmatic and common-sensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and fora, to obtain at last, outcomes favourable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute and calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice.”

32. The court concluded that:“The practical effect of the res judicata doctrine is that it is a complete estoppel against any suit that runs afoul of it, and there is no way of going around it – not even by consent of the parties –because it is the court itself that is debarred by a jurisdictional injunct, from entertaining such suit.”

33. Turning to the facts of this case, the respondent’s assertion originated from it’s argument that the subject matter, an item of expenditure was directly in issue in Nairobi HCC Miscellaneous Application No 63 0f 2018, Wesley Mdawida Charo versus University of Nairobi.

34. The facts of this case reveal that the parties in the instant suit are the same and are litigating under the same title. Moreover it is evident that the impugned suit was tried by a competent court being this court in the JR division. The court ultimately issued conclusive orders on the same awarding costs to the respondent herein.

35. The matters raised in the instant petition introduce issues revolving around the petitioner’s constitutional rights and the impugned payment of Ksh 1000000 before the petitioner can access his diploma certificate and the relevant transcripts. It is an uncontested fact as can be discerned from the parties’ attached correspondence that the impugned Ksh 1,000,000 was as a result of the Nairobi HCC Miscellaneous Application No 63 0f 2018 which the respondent termed as legal fees.

36. In my view, the foundation of the instant suit informs that the matters raised herein save for the alleged constitutional violations flow from the conclusion arrived at in Nairobi HCC Miscellaneous Application No 63 0f 2018. This means that the existence of the instant suit is pegged on the determination of the court on the award of costs which led the respondent seeking payment of its legal fees. I find that this issue was directly in issue in the said suit and now forms the substratum of the instant suit. This is because the petitioner has not brought about new issues for determination which were not in issue in the said suit. Elimination of the subject matter being Ksh 1000000 in this suit would predictably end the instant suit.

37. It is noted that the decision in Nairobi HCC Miscellaneous Application No 63 of 2018 was not challenged by way of appeal by the petitioner and hence the orders therein remain conclusive and final. The petitioners must pay costs as ordered by the court.

38. From the foregoing the undeniable deduction I come to is that the petition herein offends the doctrine of res judicata as stipulated under section 7 of the Civil Procedure Act and expounded on by the cited authorities. The existence of these elements in essence bars this court from exercising jurisdiction over the matter. As opined in the cited authorities the doctrine of res judicata is a complete estoppel against maintenance of such a suit in this court.

39. Any issues of the costs and /or arising therefrom (Nairobi HCC Misc Application No 63 of 2018) as is the case here should be handled by the trial court. It is that court that will assess the costs and direct on what should be done in case of non-payment of the said costs. This issue cannot be determined by this court even if camouflaged as violation of constitutional rights.

40. From the foregoing analysis and guided by the indicated authorities, it is my humble conclusion that owing to the doctrine of res judicata this court does not have jurisdiction to entertain this matter.

41. The upshot is that the preliminary objection dated April 14, 2022 has merit and is allowed. The petition is struck out with costs.

42. Orders accordingly.

DATED AND SIGNED THIS 12TH DAY OF OCTOBER, 2022 AT MILIMANI, NAIROBI.H. I. ONG’UDIJUDGE OF THE HIGH COURTDELIVERED AND SIGNED THIS 13TH DAY OF OCTOBER, 2022 AT MILIMANI, NAIROBI.MUGURE THANDEJUDGE OF THE HIGH COURT