[2017] KEHC 1041 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

COMMERCIAL & ADMIRALTY DIVISION

HCCC NO. 714 OF 2010

FRANCOIS NGIRABATWARE………PLAINTIFF/RESPONDENT

VERSUS

NDIKUMANA CONSTANTI……..……DEFENDANT/APPLICANT

RULING

1. Before Court is a Motion dated 3rd February 2017 seeking that the Plaint dated 27th October 2010 be struck out and the entire suit be dismissed with costs to the Defendant.

2. The premises for the Motion are twofold. First that the Plaintiff has since the filing of the Plaint on 27th October 2010 failed to extract or serve Summons to Enter Appearance upon the Defendant. Secondly, that this suit is Res judicata No.s HCCC Nrb. 604/2008 (1) NDIMO LIMITED (2) BIZABIGOMBA MOPESTE VS (1) FRANCIS NGIRABATWARE (2) MUGANDA WASULWA T/A KEYSIAN AUCTIONEERS.

3. I start with the issue involving the Summons. Vide an Application filed on 04th February 2016, the Defendant sought unconditional leave of Court to file a Defence herein. In a Ruling delivered on 13th October 2016, the Court granted the leave for 14 days. Subsequently, the Defendant filed his Defence and in paragraph 1 pleads as follows:-

“Notwithstanding that this Suit was filed on 27th October 2010 and no Summons to Enter Appearance have been extracted or served upon the Defendant, the Defendant files this Defence pursuant to the Ruling and Orders of Court given on 13th October 2013 (Hon. Justice F. Tuiyot) without prejudice to the right to apply for the suit to be Dismissed/Struck out for Non-compliance with the Rules of Procedure and an Application for Security for Costs.”

4. This Court has considered the rival arguments made herein in respect of the Summons and is of the following view. The object of Summons to Enter Appearance is to make a Defendant to be aware of a suit against him and to invite the Defendant to Enter Appearance within the time specified in the summons (see Kimonjo Family Co. Ltd and Kimonjo Family Company & Partners Limited & 3 Others (2005) eKLR.

5. In the Application for leave to file Defence, the Defendant had expressly deponed as follows;-

“That when this Suit was originally filed in 2010, the same was served through a Newspaper Advertisement which I got to know through a friend and immediately instructed M/S S.M. Keyonzo & Co. Advocateswho had previously acted for us in another suit with the Plaintiff (HCCC 604 of 2008). Attached and marked “CN Page 25” is a copy of the Advertisement and Receipt for payment of Instructions/Legal fees to the Advocate.”

It is clear therefore that by 14th December 2010, when he instructed the firm of S.M. Keyonzo Advocates, the Defendant had become aware of the suit.

6. The Court record shows that the said Advocates thereafter participated in these proceedings and when judgment was entered against the Defendant, he specifically sought to be granted leave to file a Defence and to defend the suit on its merits.

7. In the circumstances of this case, the Defendant should not be allowed to take out any capital on the technical point that Summons herein have never been extracted or served on him. Having become aware of the existence of a claim against him as early as 14th December 2010 and have instructed Counsel to act for him herein, the Defendant cannot turn round and argue that the suit is a nullity.

8. The Court’s attention turns to consider whether or not the suit is res judicata Suit No. HCCC 604 of 2008. The plea of Res judicata has been codified in Section 7 of the Civil Procedure Act 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.

Explanation. —(1) The expression “former suit” means a suit which has been decided before the suit in question whether or not it was instituted before it.

Explanation. —(2) For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court.

Explanation. —(3) The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.

Explanation. —(4) Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

Explanation. —(5) Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused.

Explanation. —(6) Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.

9. This Court has on occasion upon occasion set out the principles to be applied when a plea of Res judicata is set up. I am content to quote Hon. Onguto J. in Edward Akongo Oyugi & 2 Others vs Attorney General (2016) eKLR when he held;-

“10. The Law is also now relatively clear that for a pleas of res judicata to succeed, the Respondent must establish four critical factors. First, that the parties must be the same or parties under whom they claim or litigate. Secondly, the matter must be directly and substantially in issue in both suits. Thirdly, the matter must have been conclusively decided in the previous suit. Finally, there must be shown a concurrence of jurisdiction: See Nicholas Njeru –v-Attorney General & 8 others [2013] eKLR and also DSV Silo –v- The Owners of Sennar [1985] 2 ALL ER 104.

11. The application of the principle of res judicata has the potential of locking out a person from the doors of justice or even reaching the outstretched arms of justice or the claim is disposed off without venturing into the merits. Consequently, the factors and eh circumstances ought always be nit-picked and caution exercised. The Court ought to be in no doubt that the principle is applicable to the facts and circumstances or each case”

10. Once a Court upholds an argument of Res judicata, then a suit faces a fatal blow. It is in a death knell. For this reason, a Court must be satisfied beyond doubt that a suit offends the doctrine before making such a declaration. But once it is established then a Court should not hesitate to stop such abuse of Court process because it is inimical to public policy for Parties to a Judicial decision to re-litigate a question already settled by the decision before the same forum.

11. Abridged, the basis of the Plaintiff’s claim against the Defendant is a contract for sale entered on 1st July 2000 for motor vehicles, tracks and trailers registration numbers:-

(i) KAH 912Q – ZB 6308

(ii) KAH 917Q – ZB 6309

(iii) KAH 921Q – ZB 6310

(iv) KAK 615V – ZB 7472

(v) KAK 308Z – ZB 7467

(vi) KV 9072B – KV 1067M

(vii) KV 5460C – KV 5599C

(viii) KV 1621D – KV 9072B

(ix) KV 8112C – KV 8266V

(x) KV 7291C – KV 7292C

12. The Plaintiff pleads breach of contract and prays for judgment against the Defendant for the following reliefs;-

(a) A declaration that the following vehicles/trailers:

(i) KAH 912Q – ZB 6308

(ii)KAH 917Q – ZB 6309

(iii)KAH 921Q – ZB 6310

(iv)KAK 615V – ZB 7472

(v)KAK 308Z – ZB 7467

are owned and are the properties of the 2nd Plaintiff.

(vi) KV 9072B – KV 1067M

(vii)KV 5460C – KV 5599C

(viii)KV 1621D – KV 9072B

(iv)KV 8112C – KV 8266V

(v)KV 7291C – KV 7292C

are owned and are the properties of the 2nd Plaintiff.

(b) An Order of injunction restraining the Defendants, their servants, or agents from seizing or attempting to seize vehicles mentioned in paragraph (a) above or in any manner interfering with the Plaintiff’s quite use and possession if the same.

(c) A mandatory injunction directing that vehicle/trailer number KV 8266C already seized by the Defendants be returned and restored to the 2nd Plaintiff.

(d) Damages for wrongful seizure and detention of the said vehicles.

(e) Costs of this suit.

13. There was then Civil No. 604 of 2008. In Court, the 1st Defendant averred that it was the registered owner of the following trailers and/or lorries;-

(a) KAH 912Q - ZB 6308

(b) KAH 917Q - ZB 6309

(c) KAH 921Q - ZB 6310

(d) KAK 615V - AB 7472

(e) KAK 308Z - ZB 7467

While the 2nd Plaintiff averred that it was the registered owner of the following Lorries and trailers;-

(a) KV 9072B - KV 1067M

(b) KV 5460C - KV 5599C

(c) KV 1621D - KV 9072B

(d) KV 8112C - KV 8266C

(d) KV 7291C - KV 9272C

Immediately to be noted is that these Trailers/Lorries are those that are the subject matter of the current suit.

14. In HCCC No. 604 of 2008, the Plaintiff herein was sued as the Defendant. The gist of the claim was that the Defendant was wrongfully claiming the Trucks/Lorries to be his while the Plaintiffs had sold them to one Constantin Ndikumana (The Defendant herein). The Plaintiffs sought judgment against the Defendants jointly and severally as follows:-

A declaration that the following vehicles/trailers:

(i) KAH 912Q – ZB 6308

(ii)KAH 917Q – ZB 6309

(iii)KAH 921Q – ZB 6310

(iv)KAK 615V – ZB 7472

(v)KAK 308Z – ZB 7467

are owned and are the properties of the 2nd Plaintiff.

(vi) KV 9072B – KV 1067M

(vii)KV 5460C – KV 5599C

(viii)KV 1621D – KV 9072B

(iv)KV 8112C – KV 8266V

(v)KV 7291C – KV 7292C

are owned and are the properties of the 2nd Plaintiff.

(b) An Order of injunction restraining the Defendants, their servants, or agents from seizing or attempting to seize vehicles mentioned in paragraph (a) above or in any manner interfering with the Plaintiff’s quite use and possession if the same.

(c) A mandatory injunction directing that vehicle/trailer number KV 8266C already seized by the Defendants be returned and restored to the 2nd Plaintiff.

(d) Damages for wrongful seizure and detention of the said vehicles.

(e) Costs of this suit.

15. It is common ground that HCCC No. 604 of 2008 was marked as settled vide a consent order of 10th August 2009 which read:-

“we shall be grateful if you could please mark the above case as settled with no order as to costs.”

16. It is the case of the Defendant that after the settlement of HCCC No. 604 of 2008, all the Trucks/Trailers were transferred into the name of the first Plaintiff therein (Ndimo). The Defendant submits:-

“The same issues and matters are what are set out in the present suit HCCC 714/2010 in which the Plaintiff now purports that there was breach, late payments, loss, damage and special damages after the earlier suit was settled and the vehicles transferred to NDIMO LTD and the Court is barred from entertaining the present suit on the same subject matter by virtue of the Provisions of Section 7 and the doctrine of RES JUDICATA”.

17. What, if any, is the nexus between the two suits? No doubt, the subject matter of the suits are the same, that is the motor vehicles and trailers. In HCCC 604 of 2008, the contest in the main, was the ownership of the motor vehicles. A contest between the Plaintiffs therein and Francis Ngirabatware. Francis Ngirabatware is a common actor in both suits, as a Defendant in 604 of 2008 and a Plaintiff herein.

18. It is revealed in the pleadings in 604 of 2008, that the 2nd Plaintiff therein and one Constantin Ndikumana are the owners of the 1st Plaintiff Company. Constantin Ndikumana is the Defendant herein.

19. Common to the two suits is that the Parties place some reliance on an Agreement dated 1st July 2000 between the 1st Defendant and Constantin Ndikumana. In HCCC No. 604 of 2008 it is pleaded that it was on the strength of this Agreement that Francis Ngirabatware sold the vehicles referred to in paragraph 13 of this Decision to the said Ndikumana. Ngirabatware’s case is that it was on the basis of that Agreement that it sold all the vehicles/trailers to Ndikumana.

20. In HCCC No. 604 of 2008, the Plaintiffs sought the intervention of the Court for a declaration that they were the owners of the vehicles/trailers and that Ngirabatware should be injuncted from attempting to dispossess them of the same.

21. It is not disputed that by a consent of 10th August 2009, HCCC No. 604 of 2008 was marked as settled. The basis or background to the consent is not revealed. Neither are the specific terms upon which the settlement was reached. The evidence, however, is that thereafter the ownership of the vehicles was transferred to the 1st Plaintiff (Ndimo). It can be inferred that as between the Parties to that suit the controversy surrounding the ownership of the vehicles/trailers had been settled.

22. The gist of the present suit in which the disputants are Ngirabatware and Ndikumana is that Ndikumana breached the contract entered on 1st July 2000 and in it Ngirabatware seeks inter alia, payment of the balance of the purchase price and damages for breach of the contract. It has to be remembered that Ndikumana who was privy to the Agreement of 1st July 2000 was not a Party in HCCC No. 604 of 2008. And it has not been said that Ndikumana was litigating through the Plaintiffs therein.

23. In addition, while HCCC No. 604 of 2008 apparently settled the issue of ownership of the vehicles/trailers, it is not clear to this Court that the settlement resolved all issues that Ngirabatware feels were outstanding between him and Ndikumana. It is not insignificant, for the issue before Court,that Ndikumana, and not the Plaintiffs in HCCC No. 604 of 2008, was privy to the contract upon which Ngirabatware launched his claim herein and that Ndikumana was not a Party therein.

24. This Court is minded that if it were to uphold the plea of Res judicata, then it may very well be the end of the road for the Plaintiffs’ claim. Caution is urged in the circumstances. There is in my view, a haze, as to whether the breach of contract pleaded herein was a matter that ought to have been raised in HCCC No. 604 of 2008. In the unclear circumstances, this Court prefers to postpone the resolution of the matter to a deliberative session, the trial of this case.

25. No merit is found in the Motion of 3rd February, 2017 and it is hereby dismissed with costs.

Dated, Signed and Delivered in Court at Nairobi this 1st Day of December, 2017.

F. TUIYOTT

JUDGE

PRESENT;

Omenga holding brief for Otachi for the Plaintiff/Respondent

Kaberia holding brief for K’Opere for the Defendant/Applicant

Alex - Court Clerk