[2022] KEHC 16176 (KLR)

Gichana v Drivers Universe Motor Co. Limited (Civil Appeal E021 of 2021) [2022] KEHC 16176 (KLR) (Civ) (9 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16176 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E021 of 2021

JK Sergon, J

December 9, 2022

Between

Papa Peters Gichana

Appellant

and

Drivers Universe Motor Co. Limited

Respondent

(Being an appeal against the ruling and order of Honourable E. Kagoni (Mr.) (Principal Magistrate) delivered on 19{{^th}} January, 2021 in Nairobi CMCC no. E5729 of 2020)

Judgment

1. The appellant in this instance instituted the suit before the Chief Magistrate’s Court at Milimani Commercial Courts vide the plaint dated October 8, 2020 and sought for various reliefs against the respondent, including a permanent injunction restraining the respondent from repossessing the motor vehicle registration number KCW 300G Mercedes Benz S-class (“the subject motor vehicle”) from the appellant without a refund of 50% of the purchase price paid and repair costs; an order rescinding/repudiating the sale agreement entered into between the parties herein in respect to the subject motor vehicle; general damages for breach of contract, plus costs of the suit and interest thereon.

2. The appellant pleaded in the plaint that the respondent herein was at all material times the financier and/or owner of the subject motor vehicle whereas the appellant was at all material times in possession of the subject motor vehicle.

3. The appellant pleaded in the plaint that sometime on or about the July 31, 2020 the parties herein entered into a sale agreement wherein the respondent agreed to sell the subject motor vehicle to the appellant at a consideration/purchase price of Kshs 4,050,000/=, with the appellant paying 50% of the purchase price.

4. It is pleaded in the plaint that following his payment of the 50%, the respondent misrepresented the condition of the subject motor vehicle, thereby resulting in the purchase of a defective vehicle and consequently, a breach of contract by the respondent, the particulars of which are set out in the plaint.

5. It is also pleaded in the plaint that as a result of breach on the part of the respondent, the appellant has incurred loss/damage in respect to the subject motor vehicle, totaling the sum of Kshs 2,231,000/=.

6. In the plaint, the appellant further pleaded that he is apprehensive that the respondent will take steps to repossess the subject motor vehicle to recover any outstanding balance.

7. Subsequently, the respondent filed the notice of motion dated October 8, 2020 (“the application”) and sought for a temporary injunction restraining the respondent from repossessing the subject motor vehicle pending the hearing and determination of the suit, and an order for the release of the subject motor vehicle to the appellant. The application was opposed by the respondent.

8. Upon hearing the parties on the aforementioned application, the trial court declined to grant any of the orders sought but ordered that there be a stay of the proceedings in the suit.

9. Being aggrieved by the above decision, the appellant sought to challenge the same by way of an appeal. Through the memorandum of appeal dated January 20, 2021 the appellant has put in the following grounds:i.That the learned trial magistrate erred in law and in fact by failing to determine the appellant’s application dated October 12, 2020 on merit and by so doing violated the appellant’s constitutional right to be heard.ii.That the learned trial magistrate erred in law and in fact by failing to determine the appellant’s application dated October 12, 2020 and by so doing abdicated his judicial duty and aided the respondent in the abuse of the court process.iii.That the learned trial magistrate erred in law and in fact by treating a miscellaneous application No 84 of 2020, Chief Magistrate’s Court at Kisii as a pending suit when the same had been determined.iv.That the learned trial magistrate erred in law and in fact by holding that the appellant’s application dated October 12, 2020 was an abuse of the court process and by holding so arrived at a wrong decision.v.That the learned trial magistrate erred in law and in fact by failing to preserve the subject matter of the appellant’s suit and by so doing rendered the appellant’s suit inconsequential.vi.That the learned trial magistrate erred in law and in fact by failing to appreciate the proceedings before him were adversarial and not inquisitive and by so doing arrived at a wrong decision.vii.That the learned trial magistrate erred in law and in fact by misconstruing and misinterpreting the provisions of section 6 of the Civil Procedure Act when the facts before him did not warrant the invocation of the said provisions and by so doing arrived at a wrong decision.

10. This court issued directions to the parties to file written submissions on the appeal.

11. The appellant on his part submits that the trial court erred in overlooking the fact that the application which was placed before it sought for interlocutory injunctive orders and instead considered the issue on whether the suit before it is sub judice, thus denying the appellant the right to a fair hearing.

12. The appellant also faults the trial court for making a determination on the application dated October 8, 2020 which had already been overtaken by events whereas the application which was placed before him for determination is that dated October 12, 2020 and which latter application sought for distinctive orders which were not considered.

13. The appellant contends that the sub judice rule did not apply in the present instance since the suit giving rise to the appeal and Kisii miscellaneous application No 84 of 2020-Karongo James Ng’ang’a t/a The Ale Auctioneers v Papa Peters Gichana (“the 2nd proceedings) contain different issues and do not relate to the same parties, and hence the trial court erred in arriving at the conclusion that the two (2) proceedings are related.

14. It is the submission by the appellant that the decision by the trial court therefore ought to be interfered with and cites the case of United India Insurance Co Ltd & 2 others v East African Underwriters (Kenya) Ltd [1985] eKLR where the Court of Appeal held that:“The Court of Appeal will not interfere with a discretionary decision of the judge appealed from simply on the ground that its members, if sitting at first instance, would or might have given different weight to that given by the judge to the various factors in the case.The Court of Appeal is only entitled to interfere if one or more of the following matters are established: first, that the judge misdirected himself in law; secondly, that he misapprehended the facts; thirdly, that he took account of considerations of which he should not have taken account; fourthly, that he failed to take account of considerations of which he should have taken account, or fifthly, that his decision, albeit a discretionary one, is plainly wrong.”

15. On the other part, the respondent through its brief submissions contends that the sub judice rule became applicable in the present circumstances since both the suit and the 2nd proceedings relate to the same subject matter, namely the subject motor vehicle; and that in the 2nd proceedings the auctioneer being the applicant was acting as an agent of the respondent herein.

16. The respondent contends that the existence of two (2) separate proceedings over the same subject matter would result in conflicting decisions by courts, and hence the trial court acted correctly in staying the proceedings in the suit pursuant to the proviso of section 6 of the Civil Procedure Act (“the Act”) on duplicity of suits, making reference to the case ofDavid Ndii & others v Attorney General & others[2021] eKLR where the court stated that:“The rationale behind this provision is that it is vexatious and oppressive for a claimant to sue concurrently in two courts. Where there are two courts faced with substantially the same question or issue, that question or issue should be determined in only one of those courts, and the court will, if necessary, stay one of the claims.”

17. I have considered the rival submissions and the authorities cited therein in respect to the appeal. I have also re-evaluated the relevant material and evidence which was placed before the trial court. It is noteworthy that the appeal is essentially against the trial court’s decision to stay the proceedings in the suit. I will therefore tackle the seven (7) grounds of appeal together under the following limbs.

18. The first limb on appeal has to do with whether the learned trial magistrate addressed himself on the wrong application, namely the notice of motion dated October 8, 2020 (“the first application”) rather than the notice of motion dated October 12, 2020 (“the second application”), thereby misdirecting himself.

19. Upon my study of the record, it is apparent that the impugned ruling was in respect to the first application seeking for a temporary injunction restraining the respondent from repossessing the subject motor vehicle pending the hearing and determination of the suit, and an order for the release of the subject motor vehicle to the appellant.

20. Upon my further study of the record, particularly the proceedings by the trial court annexed to the record of appeal, it is apparent that the appellant had at the first instance filed the first application which was never heard or determined.

21. Suffice it to say that upon my perusal of the record, it is apparent that the first application was subsequently overtaken by events. The record further shows that it is the second application which had been placed before the learned trial magistrate for hearing and which ought to have precipitated the ruling.

22. The second application sought for a temporary injunction restraining the respondent from selling or otherwise disposing of the subject motor vehicle pending the hearing and determination of the suit and further sought for the unconditional release of the subject motor vehicle to the appellant pending the hearing and determination of the suit.

23. From the foregoing circumstances, it is plausible that there could have been an inadvertent mistake on the part of the trial court. Be that as it may, I am of the view that the learned trial magistrate misdirected himself on this issue.

24. The second limb on appeal touches on whether the learned trial magistrate acted correctly by invoking the provisions of section 6 of the Civil Procedure Act (“the Act”).

25. The record shows that the first application was premised on the fact that subsequent to the sale agreement and possession of the subject motor vehicle by the appellant, sometime on or about October 2, 2020 the appellant was accosted by purported auctioneers near the roundabout at Parklands Police Station, claiming to be under the instructions of the respondent and instructed to repossess the subject motor vehicle.

26. The appellant stated that the respondent misrepresented the condition of the subject motor vehicle and it is not until the appellant took possession thereof that he noticed the defects in the subject motor vehicle.

27. The appellant further stated that unless the injunctive orders are granted, he stands to lose the subject motor vehicle and the part of the purchase price paid, as well as the costs incurred in undertaking repairs on the subject motor vehicle.

28. On the part of the respondent, it was stated that the repossession of the subject motor vehicle would be justified since the appellant acted in breach of the sale agreement by failing to pay the outstanding balance of the purchase price for the subject motor vehicle.

29. The respondent further stated that the appellant had come to court with unclean hands and had not met the threshold for granting an interlocutory injunction.

30. In the end, the learned trial magistrate reasoned that whereas the first application sought for injunctive orders, the main issues for consideration had to do with whether the suit is sub judice.

31. The learned trial magistrate reasoned that the respondent through its agents had filed the 2nd proceedings in Kisii and obtained orders for repossession of the subject motor vehicle, resulting in the repossession on October 9, 2020.

32. The learned trial magistrate further reasoned that thereafter, the appellant filed the application dated October 12, 2020 in the 2nd proceedings and sought for an order restraining the respondent and/or its agents from auctioning the subject motor vehicle and which injunctive order was issued in the interim and the application slated for interparties hearing on October 22, 2020.

33. The learned trial magistrate set out in his ruling that the above conduct by the parties was tantamount to forum shopping and created a multiplicity of suits which would result in conflicting decisions by the courts.

34. For the foregoing reasons, the learned trial magistrate declined to consider the merits of the first application and concluded that the actions by the parties herein was an abuse of the court process, thus staying the proceedings in the suit to enable the parties bring the suit in compliance with the proviso of section 6 of the Act.

35. Section 6 (supra) expresses 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.”

36. The above provision is further explained by the Supreme Court in the case of Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (interested parties) [2020] eKLR cited in the case of Ann v R M K[2021] eKLR found in the submissions by the respondent on appeal, thus:“The term ‘sub-judice’ is defined in Black’s Law Dictionary9th 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.”

37. Upon my consideration of the pleadings and material on record it is apparent that there existed two (2) separate proceedings at all material times; that is, the suit and the 2nd proceedings, relating to the same subject matter being the subject motor vehicle.

38. Upon my further consideration of the pleadings and material on record, it is also apparent that the suit and first application were lodged by the appellant whereas the 2nd proceedings were lodged by the respondent admittedly through its agent (Karongo James Ng’ang’a t/a The Ale Auctioneers) and hence both proceedings involve the same parties essentially. It remains unclear from the record which of the two (2) proceedings preceded the other in terms of filing.

39. The record shows that the parties herein litigated over the subject motor vehicle at all material times in the two (2) separate proceedings and no credible evidence was tendered to show whether the 2nd proceedings were ever concluded and if so, the outcome thereof.

40. The record also shows that various orders were issued by the court in both the suit and the 2nd proceedings, which supports the reasoning by the learned trial magistrate that the existence of two (2) separate proceedings over the same subject matter would result in the risk of conflicting court orders.

41. In view of all the foregoing circumstances, I concur with the reasoning by the learned trial magistrate that the conduct by the parties constitutes an abuse of the court process and which abuse ought to be remedied somehow.

42. I therefore find that notwithstanding the fact that the learned trial magistrate considered a different application from that which had been placed before him for determination, the issue of sub judice; though not raised by the parties; was a key issue for consideration and determination by the learned trial magistrate on his own motion.

43. I am satisfied that the learned trial magistrate acted correctly in exercising his discretion by invoking the provisions of section 6 (supra) and in staying the proceedings in the suit as a consequence. I therefore see no reason to disturb his finding in the circumstances.

44. Accordingly, the appeal is hereby dismissed for lack of merit. Consequently, the ruling delivered on January 19, 2021 in NairobiCMCC No E5729 of 2020 is hereby upheld.

45. In the circumstances, a fair order on costs is to direct each party to bear their own costs of the appeal.

Dated, Signed and Delivered online via Microsoft Teams at Nairobi this 9th day of December, 2022. ………….…………….J. K. SERGONJUDGEIn the presence of:……………………………. for the Appellant……………………………. for the Respondent