[2022] KEHC 1802 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYERI

CONSTITUTIONAL APPLICATION NO. 1 OF 2012

IN THE MATTER OF: THE CONTRAVENTION OFARTICLES

(1) & (3)(a) AND 3(b) OF THE OF KENYA, 2010

BETWEEN

FRANCIS JAMES NDEGWA..........................................................................PETITIONER

VERSUS

2NK SACCO LIMITED................................................................................RESPONDENT

RULING

Brief Facts

1. This is a ruling on two applications dated 15th May 2019 and 10th January 2020. The application dated 15th May 2019 is brought under Articles 22(1), 23(1) & (3)(a), 25(1)(c), 40(2)(a) and 159(2)(d) of the Constitution 2010, Order 6 Rule 1, Order 7 Rule 1 and Order 9 Rule 1, Rule 2(c), Rule 4(2) and Rule 6 and Section 36 of the Co-operative Society Act seeking for review of the court’s judgment dated 9th May 2019. The respondent opposed the application in his Replying Affidavit dated 25th June 2019.

2. The application dated 10th January 2020 is brought under Order 1 Rule 14 of the Civil Procedure Rules seeking for orders for striking out the firm of Karweru & Co. Advocates as the advocates for the respondent and striking out Ann Nyawira Kinyua as she was not appointed to act on behalf of the respondent. In opposition to the application, the respondent filed a Replying Affidavit dated 29th March 2021.

The Applicant’s Case on the application dated 15/5/2019

3. It is worth noting from the onset that the applicant raises issues concerning the appointment of advocates by the respondent and also the appointment of one Ann Nyawira Kinyua by the respondent which do not really revolve the issue of review. As such, I shall only address the issue of review. The applicant relies on Articles 22 and 23 and states that the court erred by stating that this matter ought to have been filed in the Cooperative Tribunal and not in the High Court. He further argues that the honourable court is under an obligation to handle the matter before it.

The Respondent’s Case on the application dated 15/5/2019

4. It is the respondent’s case that the application does not meet the threshold of review under Order 45 of the Civil Procedure Code. Moreover, the respondent contends that all the issues raised in the application were canvassed and addressed in the judgment dated 9th May 2019. As such, the application is a waste of the court’s time and ought to be dismissed with costs.

5. The applicant filed a Reply to the Replying Affidavit dated 2nd July 2019 which reiterates what he deposed in his earlier affidavit and it largely does not address any issues of the review of the judgment but instead deals with the substance of the matter.

The Applicant’s Case on the application dated 10/1/2020

6. It is the applicant’s case that the firm of Karweru & Co. Advocates were not duly appointed by the respondent and hence are in contravention of Order 9 of the Civil Procedure Rules. As such, the applicant urges the court to strike out Karweru & Co. Advocates as the legal counsels for the respondent. Furthermore, the applicant states that Ann Nyawira Kinyua was not appointed to act in court on behalf of the respondent and that her name ought to be struck out of this matter. the applicant further prays that the court expunges the affidavit dated 25th June 2019 sworn by Ann Nyawira Kinyua from the court records following the striking out of her name as a party.

The Respondent’s Case on the application dated 10/1/2020

7. The respondent states that the issues raised by the applicant were raised and determined by the court in a substantive hearing and are therefore res judicata.

8. Parties hereby disposed of the applications by written submissions. A summary of the submissions is as follows:-

Applicant’s Submissions

9. The applicant reiterates what he swore in his affidavits and further submitted that the cooperative tribunal does not have jurisdiction to determine constitutional issues and hence he could not file his case in a cooperative tribunal. As such, he prays that the court allows his applications.

Respondent’s Submissions

10. The respondent submits that the issues raised by the applicant were raised and determined by the court in a substantive hearing and are therefore res judicata. The respondent further states that no new matters have been shown to have been discovered that were previously not available to the applicant.

11. The respondent further submits that the court had previously ordered the applicant not to file any applications in the matter before he pays the previous costs. Further, the respondent contends that the numerous applications are an abuse of the court process and they ought to be dismissed with costs.

Issues for determination

12. The main issues for determination are as follows:-

a) Whether the applicant has made a case for review of the judgment dated 9th May 2019.

b) Whether the issues raised herein are res judicata.

The Law

Whether the judgment dated 9th May 2019 ought to be reviewed.

13. Without prejudice to the foregoing, the applicant has also relied on order 45 of the Civil Procedure Code seeking review orders. Order 45 of the Civil Procedure Act and Rules provides:

1. Any person considering himself aggrieved;

a) By a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or

b) By a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree made the order without unreasonable delay.

14. From the foregoing, it is clear that for review orders be granted the following has to be considered:-

a) There must be discovery of new and important matter;

b) The new matter was not within the applicant’s knowledge;

c) The new matter could not have been produced at the time the decree or order was passed exercising due diligence;

d) There is an error apparent on the face of the record;

e) There are shown sufficient reasons.

15. Applying the above principles to the case at hand, the applicant has not satisfied the elements to warrant him to review orders. He has not demonstrated to the court any discovery of new and important matter that was not within his knowledge at the time of the suit. As stated earlier, the applicant was not keen on orders of review but he seemed to raise and canvass issues that were the crux of his petition, which was determined by the judgment of 9th May 2019.

Whether the issues raised herein are res judicata

16. The principle of res judicata is found in Section 7 of the Civil Procedure Act which provides:-

“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.”

17. This doctrine has been explained in a number of cases. However I shall focus on the recent case of The Independent Electoral and Boundaries Commission vs Maina Kiai & 5 Others Nairobi CA Civil Appeal No. 105 of 2017 [2017] eKLR,the Court of Appeal held that:-

“Thus, for the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must be satisfied, as they are tendered not in disjunctive but conjunctive terms;

a) The suit or issue was directly and substantially in issue in the former suit

b) That the former suit was between the same parties or parties under whom they or any of them claim

c) Those parties were litigating under the same title.

d) The issue was heard and finally determined in the former suit.

e) The Court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised

18. The court explained the role of the doctrine thus:-

“The rule of doctrine of res judicata serves the salutary aim of bringing finality to litigation and afford 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 commonsensical 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 for a, 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 or calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice.”

19. On perusal of the court record, the issues raised by the applicant on the appointment of the respondent’s advocates, the lack of capacity by Ann Nyawira Kinyua and the letter of introduction to the Kenya Revenue Authority (KRA) in order to obtain licences have been raised before. A court of competent jurisdiction heard and determined the said issues in its judgment dated 9th May 2019. It is worth noting that that the applicant has been filing applications and preliminary objections which raise the same issues as others determined earlier by the court. In her judgement, Judge Matheka pointed out that by filing the numerous applications, the applicant was in an abuse of the court process. The issues raised by the applicant have been dealt with substantively and thus bringing them up again through two applications is not only an abuse of the court process but a waste of precious judicial time.

Conclusion

20. I have perused the judgement of Matheka J and note that the issues raised herein were dealt with by the Judge. It was also found by the honourable judge that this petition ought to have been filed before the Cooperative Tribunal. I am sitting in a court of equal jurisdiction as the judge who determined this case.

21. As such I am of the considered view that I cannot sit on appeal on the orders of Judge Matheka. If applicant was dissatisfied with the judgement of the judge, he ought to have lodged an appeal in the Court of Appeal which is mandated to hear appeals from the High Court.

22. I agree with the respondent that the issues raised in the application dated 10/01/2019 are res judicata and cannot be entertained, and I so find.

23. Having so found, I find that the prayers for review of judgement in the application dated 16/05/2019 is improperly before the court.

24. Consequently, I hereby strike out applications dated 10/01/2019 and 16/05/2019 respectively for being incompetent.

25. It is hereby so ordered.

DELIVERED, DATED AND SIGNED AT NYERI THIS 3RD DAY OF MARCH, 2022.

F. MUCHEMI

JUDGE

Ruling delivered through videolink this 3rd day of March