[2022] KEHC 16001 (KLR)

Ethics & Anti-Corruption Commission v Otieno & 2 others (Anti-Corruption and Economic Crimes Civil Suit E011 of 2022) [2022] KEHC 16001 (KLR) (Anti-Corruption and Economic Crimes) (1 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16001 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Anti-Corruption and Economic Crimes

Anti-Corruption and Economic Crimes Civil Suit E011 of 2022

EN Maina, J

December 1, 2022

Between

Ethics & Anti-Corruption Commission

Plaintiff

and

Bob Kephas Otieno

1st Defendant

Lillian Achieng Aloo

2nd Defendant

David Obonyo Mireri

3rd Defendant

Ruling

1. The plaintiff’s claims against the defendants herein is for a sum of Kshs 12,571,166/50, costs of the suit and interest.

2. It is averred that the 1st defendant, who at all times material to the suit, was the Clerk of the County Assembly of Homa Bay and hence the Accounting Officer, illegally, fraudulently and in abuse of his office authorized transfer of large amounts of money amounting to Kshs 12,517,166/50 from the salary suspense account of the County Assembly of Homa Bay to the personal joint account of the 2nd and 3rd defendants. It is also alleged that the 2nd and 3rd defendants received the funds fraudulently and illegally and are therefore liable for the loss of Kshs 12,571,166/50 being public funds. The proceedings are therefore civil recovery proceedings.

3. Upon being served with the plaint and summons to enter appearance the defendants filed a joint statement of defence by which they denied and traversed each and every averment in the plaint. The defendants also averred that the plaintiff is non-suited; that the suit is an abuse of the court process and that as drawn and filed it issubjudiceto Milimani ACEC No E015 of 2021 – Ethics & Anti-Corruption Commission vs Bob Otieno Kephas and 4 othersand it should be struck out and/or dismissed in limine and costs thereof be awarded to the defendants.

4. Apart from raising the preliminary objection in the defence on August 23, 2022 the defendants filed a similar preliminary objection in which they urged this court to dismiss the suit with costs.

5. When Counsel for the parties appeared before me on October 25, 2022, they agreed to canvass the preliminary objection by way of written submissions.

6. In summary the defendants argue that this suit is substantially similar to ACEC Suit No E015 of 2021; that the particulars of fraud and illegality contained in paragraphs 9-11 of the plaint herein are substantially similar to those contained in paragraphs 10 and12 of the plaint in ACEC Suit No E015 of 2021. Further that while this case seeks to recover Kshs 12,571,166/50 from the defendants, in ACEC No E015 of 2015 it is sought to recover Kshs 47,075,978/= from all the five defendants and more especially Kshs 12,225,978/= from the 4th defendants who are the 2nd and 3rd defendants in this case.

7. It is also the defendants’ contention that the period of investigations for both suits is the same; that the defendants are the same; the cause of action is the same; the witnesses are the same and that they shall be relying on the same statements. Further that the facts and documents to be adduced in both suits are the same. The defendants contend that this suit therefore offends the subjudice rule which is intended 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 of competent jurisdiction issuing conflicting decisions over the same subject matter.

8. Placing reliance on the case of Kenya National Commission on Human Rights vs The Attorney General, Independent Electoral and Boundaries Commission (IEBC) and 16 others [2020] eKRL and the case of Thiba Min Hydro Company Limited vs Josphat Karu Ndwiga [2013] eKLR the defendants urge this court to uphold the preliminary objection and hence dismiss this suit with costs.

9. On its part the plaintiff vehemently denied that the two suits are similar and submitted that the cause of action in this case arises from fraudulent payment of funds by the 1st defendant into the joint account of the 2nd and 3rd defendants from account No xxxx Equity Bank while the cause of action in ACEC E015 of 2021 arises from payment of Kshs 47,075,978/= by the 1st defendant to David Obonyo and Lillian Ochieng t/a Damila Enterprises from account No xxxx held in the name of the County Assembly of Homa Bay at Equity Bank.

10. It is the plaintiff’s contention therefore that the suits are distinct and do not arise from the same issues; that the only similarity is that there was fraudulent acquisition of public property by the defendants from the County Assembly of Homa Bay. To demonstrate that there are no other similarities in the two cases, Counsel for the plaintiff annexed a copy of the plaint in ACEC Suit No E015 of 2021. She urged this court to overrule the preliminary objection and to dismiss it with costs to the plaintiff.

Analysis and Determination 11. The rule ofsubjudice is contained in section 6 of the Civil Procedure Act which states.“Stay of suitNo 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.Explanation. The pendency of a suit in a foreign court shall not preclude a court from trying a suit in which the same matters or any of them are in issue in such suit in such foreign court.”

12. As held in the case of Kenya National Commission on Human Rights vs Attorney General, IEBC and 16 others (supra) subjudice simply put is “Before the court or judge”.

13. The key elements of subjudice as held in the case of the Law Society of Kenya vs Paul Kihara and 2 others [2020] eKLR are that:- Both suits arise from same cause of action.

Parties are the same.

Parties are litigating under the same title.

Suit is pending in the same or any other court of concurrent jurisdiction.

14. I have considered the rival submissions herein very carefully. I have also perused the plaint in this suit and in ACEC E015 of 2021. My finding is that the submission that this suit is subjudice to Suit No E015 of 2021 has no basis. I say so because while the parties are substantially the same the two suits do not arise from the same facts. The facts maybe similar in that fraud and illegality are pleaded in both but certainly the causes of action are different. In this suit it is alleged that the 1st defendant fraudulently and illegally paid a sum of Kshs 12,571,166/50 from the County Assembly of Homa Bay suspense account No xxxx to the 2nd and 3rd defendants on the pretext that it was salaries yet the 2nd and 3rd defendants were not employees of the county Assembly of Homa Bay. In ACEC E015 of 2021 it is illegally that the 1st defendant allegedly and fraudulently paid Kshs 47,095,978/= from an account No xxxx held in the names of the County Assembly to an enterprise known as Damila Enterprises which amount was then distributed to all the defendants including the 1st defendant, 2nd and 3rd defendants herein.

15. Clearly the two suits do not arise from the same cause of action and do not meet the definition of what constitutes subjudice. The preliminary objection therefore has no merit and it is dismissed with costs to the plaintiff.

SIGNED, DATED AND DELIVERED VIRTUALLY THIS 1STDAY OF DECEMBER, 2022. E. N. MAINAJUDGE