[2014] KEHC 880 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL NO. 575 OF 2010

GODFREY KINUU MAINGI ................................................ 1ST APPELLANT

JUSTUS MURUNGI ...........................................................2ND APPELLANT

JOSEPH NTURIBI MWITHIMBU......................................3RD APPELLANT

HARUN MBURUGU M’MAGIRI..........................................4TH APPELLANT

ANDREW GIKUNDA...........................................................5TH APPELLANT

VERSUS

NTHIMBIRI FARMERS CO-OPERATIVE SOCIETY.............RESPONDENT

R U L I N G

By an application of notice of motion dated 17th December 2010, the 5 applicants herein named sought from this court orders for suspension of an order of the Co-operatives Tribunal made on 16th December, 2010 committing them to civil jail, for failure to pay various sums of money decreed against them by the Co-operatives Tribunal. The application was heard by Hon. Justice Enock Chacha Mwita who on 22nd September, 2014, dismissed the said application for reasons that the applicants by their application had not satisfied the settled principles for stay of execution pending appeal including depositing security for the due performance of the decree, as mandated under Order 42 rule 6 (2) (b) of the Civil Procedure Rules.

Dissatisfied with the ruling of Hon. E.C. Mwita delivered on 22nd September 2014, the applicants have by their application dated 25th September 2014 brought by way of notice of motion under certificate of urgency and under the provisions of Order 42 Rules 1 (a), 10 (1)(a), Order 42 Rules 6 and Order 51 Rules 1 – 3 of the Civil Procedure Rules and Sections 1A, 1B and 1C and 3A of the Civil Procedure Act sought from this court leave to appeal against the ruling delivered herein on 22nd September 2014.

They further prayed for suspension of the order of 16th December 2010 by the Co-operatives Tribunal until further orders of the court and or pending lodging, hearing and determination of the intended appeal from the ruling delivered on 22nd September 2014, with provision for costs. The said application is premised on 14 grounds on the face thereof and supported by an affidavit of Godffrey Kinuu Maingi, the 1st appellant/applicant sworn on 25th September 2014.

The respondent filed a replying affidavit sworn by Justus K. Njiru on 30th September 2014 and also lodged a notice of preliminary objection on points of law dated the same day 30th September 2014 and filed in court on 1st October 2014, seeking to have the notice of motion dated 25th September 2014 by the applicants struck out with costs on the following grounds:

1) That the same is misconceived and non-suited in that under Section 81 of the Co-operative Societies Act Cap 490 Laws of Kenya, no appeal lies to the Court of Appeal after a decision of the High Court like this court decided on 22nd September 2014.

2) The same is Res judicata

a) Application dated 17th December 2010 whose ruling was delivered on 22nd September 2014;

b) Application dated 6th July 2010 in NRB HCC Petition No. 2 of 2010 (Godffrey Kinuu Maingi, Justus Murungi, Joseph Nturibi M’Mwithimbu, Harun Mburugu and Andrew Gikunda – Vs – Attorney General, Commissioner for Co-operative Development and Nthimbiri Farmers Co-operative Society), whose ruling was delivered on 16th March 2012;

c) Application dated 27th July 2009 in Nairobi HCCA No. 199 of 2009 (same parties – Vs – Nthimbiri Farmers Co-operative Society) whose ruling was delivered on 1st December 2009.

3) The same is otherwise an abuse of this Honourable Court’s process and waste of its precious judicial time.

When the parties appeared before me on 2nd October 2014 Mr Muthomi appeared for the respondent whereas Ms Wamucii Advocate appeared for the applicants.

In support of the preliminary objection raised, Mr Muthomi submitted that the application by the appellant/applicant should be struck out as it is res judicata Petition No. 2 of 2010 where these are the same parties therein and HCCA 199/2009, in which the applicants were granted a conditional stay and after breaching those conditions, they filed petition No. 2 of 2010 as a constitutional reference which was dismissed by Hon. Justice Lenaola as being an abuse of the court process. The respondent then moved to have the applicants committed to civil jail and to stop that process, the applicants filed the application dated 17th December 2010 which application was dismissed Hon. Justice E.C. Mwita on 22nd September 2014 and now the applicants want another stay pending appeal to the Court of Appeal. Mr. Muthomi relied on the case of Benjoh Amalgamated Ltd & Muiri Coffee Estate Limited – Vs – Kenya Commercial Bank Ltd (2006) eKLR that in any case a party who brings for the decision of the court matters which have already been determined can truly be said to be abusing the process of that court.

In support of the assertion that the application lacks merit as no appeal lies to the Court of Appeal from the decision of the High court in a matter emanating from the Co-operatives Tribunal’s decision, counsel cited Section 81 of the Co-operative Societies Act.

And on the contention that the application is an abuse of the court process, he submitted that this is shown by the applicant’s conduct and vows not to pay the decretal sum and instead engage the respondent in a cat and mouse chase, frustrating the respondents from realizing their lawfully obtained judgment.

In response to the preliminary objection raised and submissions by counsel for the respondent, Miss Wamucii submitted that Section 81 of the Co-operative Societies Act does not bar a party from appealing to the Court of Appeal from an interlocutory decision of the High Court. It only bars an appeal from a final order of the High Court. She cited the case of Karanja – vs – Kabungi (2008) KLR Election Petitions Volume 1, 235 where the Court of Appeal accepted an argument that where the statute provides that, that the High Court decision is final, an appeal could still lie to the Court of Appeal on an interlocutory application.

She further submitted that the court should consider whether there are other alternatives and ways of executing decree as opposed to committal to civil jail which in her view, offends Article 11 of the International Covenant on Civil and Political Rights which prohibits imprisonment as a way of recovering a civil debt, referring to Article 2 (6) of the Constitution of Kenya, as importing the said covenant.

On the issues relating to Res judicata, she submitted that those are factual matters which they had raised in affidavits hence she could not respond to them.

I have carefully considered the submissions by learned counsels for the parties on the preliminary objection raised.

The law and principles applicable to preliminary objections were set out in the case of Mukisa Biscuit Manufacturing Co. Ltd – Vs – West End Distributors Ltd (1969) EA 696 by Law J.A. that:

“So far as I am aware, 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.”

Sir Charles Newbold Pin the same case had this to say:

“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 judical discretion.”

Jackton J.B. Ojwang in Oraro – Vs – Mbajja (2005) eKLR held that

“I think the principle is abundantly clear. A preliminary objection, correctly understood is now well identified as, and declared to be the point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the process of evidence. Any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed. I am in agreement that where a court needs to investigate facts, a matter cannot be raised as a preliminary point.”

From the above principles, it is clear that a legal point or ground for objection of a suit or an application is limited to the test set in Mukisa Biscuit case and therefore any issue that would require probing for it to be proved is not a preliminary objection. In addition, the preliminary objection raised must be capable of disposing of the entire application, to avoid unnecessarily increasing costs and confusing of issues.

Applying the test set out in the cited authorities, the first issue is whether the points of objection raised by the respondent are points of law meeting the threshold of a preliminary objection filed on 1st October 2014.

In my humble view, the three points of objection raised are purely points of law.

I will therefore proceed to determine each of the issues of law raised.

a) Whether the application is misconceived and non-suited in that Under Section 81 of the Co-operative Societies Act Chapter 490 Laws of Kenya, no appeal lies to the Court of Appeal from the decisions of the High Court from the Co-operative Tribunal. Section 81 of the Co-operative Societies Act Co-operative Societies Act provides that:

“The decision of the High Court shall be final.”

The other question is whether, as argued by the respondent’s counsel, and not withstanding that provision in Section 81 of the Act, an appeal from an interlocutory application lies to the Court of Appeal.

The appellant’s counsel cited the case of Karanja – Vs – Kabugi & Another CA No. 30/81 Court of Appeal per Law, Miller & Potter JJA where the court was faced with the question of whether the Court of Appeal had the jurisdiction to hear appeals from matters heard in election courts in the course of interlocutory proceedings. The appellant had challenged the order of the High court giving leave to appeal against rulings because the Court of Appeal had no jurisdiction to hear such appeals. The 2nd respondent in that matter had relied on Section 44 (5) of the Constitution which precluded an appeal from the determination of the questions whether a person had been validly elected or whether a seat had become vacant, but did not specifically preclude appeals from other determinations such as rulings on interlocutory applications preceding the hearing of an election petition.

The Court of Appeal held inter alia; that;

“The instant appeal was clearly within the court’s jurisdiction, all the more so as the interlocutory proceedings, the subject of the appeal, were proceedings expressly taken under the Civil Procedure Act (Cap 21) and there could be no doubt as to the jurisdiction of the court to entertain appeals from such proceedings.

(3) The appeal was competent and within the court’s jurisdiction.”

The above holding followed an earlier holding in the case of Mudavadi – Vs - Kibisu & Another CA 25/1990 where the Court of Appeal held that it had the jurisdiction to hear an appeal from an order of the High court which did not determine the validity of the election.

The appellant in the above appeal had claimed that the High Court had erred as Section 44 (1) of the old Constitution provided that the determination by the High Court of any question under that Section (to determine any question whether any person had been validly elected as a member of the National Assembly or the seat fell vacant) shall not be subject to an appeal.

Consequently, and on the basis of the above decision of the Court of Appeal, I find that the Court of Appeal has jurisdiction to hear any appeal arising from a ruling in an interlocutory application from the High Court as such interlocutory application does not fully determine the merits of the appeal herein as envisaged under Section 81 of the Co-operative Societies Act, as the proceedings are subject to the provisions of Section 66 and 75 of the Civil Procedure Act. Accordingly, the preliminary objection on that ground and point fails.

b) On the ground that the application is res judicata application dated 17th December 2010, whose ruling was delivered on 2nd september2014; application dated 6th July 2010 in Petition No. 2 of 2010 whose ruling was delivered on 16th March 2012; application dated 27th July 2009 in Nairobi HCCA 199/2009 ruling delivered on 1st December 2009; and therefore an abuse of the court process and waste of its precious judicial time, as the applicants have designed means of evading to settle decree and are going round the circles, jumping from one court room to another in the name of ventilating grievances, wherein the matters in dispute have been fully settled, the appellant’s counsel has submitted that the allegations of Res judicata are factual as shown in the replying affidavit and therefore the same cannot be determined on a preliminary objection.

Further, that the court should consider whether anybody should be committed to civil jail when there are other alternatives and ways of executing decree. She relied on Article 11 of the International Covenant on the Civil and Political Rights which prohibits imprisonment as a way of recovering a civil debt. She also relied on Article 2 (6) of the Constitution of Kenya which imports the application of the said covenant as Kenya is a signatory thereto.

I have carefully examined the rulings quoted as having determined the issues that are similar to the ones raised in the application subject matter of this preliminary objection.

Starting with CA 199/1009 and its ruling dated 1st December 2009 by Hon. H.M.Okwengu, J (as she then was), the appellants herein had indeed sought orders of stay of enforcement/execution of the decision award of the Co-operatives Tribunal pending hearing and determination of their appeal. These appellants contended that unless stay was ordered, they would suffer substantial loss as their parcels of land relied on to support their families could be sold in execution of decree.

In her ruling, Hon. Justice Okwengu allowed the application for stay of execution pending appeal on conditions that they pay Sh. 500,000 into an interest earning account in the joint names of parties advocates and the Sh. 1,000,000 earlier deposited remain as security pending hearing of the appeal. Further, they were ordered to file and serve a record of appeal within 90 days from date of ruling.

On 29th June 2010, Hon. Lady Justice R.N. Sitati dismissed the applicant’s application for leave to file and serve the record of appeal out of time and by that time, therefore the orders of stay granted by Hon. Okwengu on 1st December 2009 had lapsed.

The applicants’ herein, then filed Petition No. 2 of 2010 seeking for declaratory orders that their fundamental rights had been violated. Hon. D. S. Majanja Judgeon 7th December 2012 dismissed their petition on the ground that the court could not entertain civil matters or matters which could be addressed through ordinary processes as matters of enforcement of fundamental rights. In his view, the petition was an abuse of the court process and it was dismissed with costs.

In the same petition, when dismissing an earlier application for stay of execution Hon. Justice Lenaola had on 16th March 2012 found that the application was an abuse of the court process. The Hon. Judge observed that the applicants herein were avoiding their obligations under the law by invoking breach of fundamental rights.

Again, the applicants herein filed a notice of motion dated 17th December 2010 seeking to suspend the Co-operatives Tribunal’s orders made on 16th December 2010 committing the applicants to civil jail. The above orders were made in execution of the award proceedings after the applicants had failed to stay execution against them as detailed above.

In an application for notice to show cause before the tribunal, the applicants contended that they were unable to meet their obligations under the decree.

The application dated 17th December 2010 was heard by Hon. Justice Chacha Mwitawho dismissed it with costs on 22nd September 2014 by a ruling delivered by myself.

In that ruling, Hon. Justice Chacha Mwita observed that the applicants had failed to take advantage of the stay granted to them by Hon. Okwengu J (as she then was) in 2009 and were now arguing that their constitutional right was under threat, which the Judge found was a matter to be decided in the main appeal herein, and in the form of a judgment and decree. He accordingly declined to stay execution pending appeal.

The applicants, dissatisfied with the ruling of Hon. Justice Mwita delivered on 22nd September 2014 now seek to challenge the same before the Court of Appeal and pending the intended appeal, they are also seeking for stay of execution of the Co-operatives Tribunal’s decree. They allege that they cannot be committed to civil jail when there are other remedies available for executing decree.

Having carefully considered the rulings delivered by my predecessors in this matter, in HCC Misc 199/2009 and in Petition No. 2 of 2010m I have no doubt in my mind that the application herein seeking for stay of execution of decree has been exhausted by the previous rulings cited above.

The applicants allege that their fundamental rights have been violated, which issue was canvassed in Petition No. 2/2010. In my view, there is nothing new that the applicants are seeking from this court. The law does not permit parties to recycle proceedings and that is the import of the provisions of Section 6, 7 and 8 of the Civil Procedure Act.

Furthermore, by bringing the same application for stay of execution pending appeal, which application has been dismissed severally and or granted on conditions which the applicants have defaulted to comply with, the applicants, in my view, are in blatant and brazen defiance of the orders of this court and do not deserve a second bite at the cherry.

Although it has been submitted, relying on Article 2 (6) of the Constitution and Article 11 of the 1CCPR that no one shall be imprisoned merely on the ground of inability to fulfil contractual or other obligation and in this case, that a committal of the applicants to civil jail is meant to punish and therefore subject them to indignity, this submission cannot hold at this stage as they are issues that were canvassed and determined by Hon. D. S. Majanja in Petition No. 2 of 2010, R.N. Sitati J and Okwengu J as reproduced above which have not been appealed against.

Hon. Sitati J having ordered inter alia that the application before her was Res judicata the earlier application dated 15th January 2010, and as at the time the application before Hon. Chacha was heard and ruling delivered, the parties were in the same position as they were, having been granted an earlier conditional stay of execution of decree orders by Hon. Okwengu which they failed to comply with, this court finds this application an abuse of the process of court and subversive of the rule of law.

I am satisfied that the previous proceedings touching on the same prayers/orders sought herein for stay of execution pending appeal, though not an appeal to the Court of Appeal like in the instant application, were determined by a court of competent jurisdiction, and those determinations have never been appealed against.

Although counsel for the applicant submitted that issues of Res judicata are facts which are addressed in the replying affidavit as filed, I hold otherwise, the doctrine of Res juridicata is provided under Section 7 of the Civil Procedure Act Cap 21 Laws of Kenya with the object of baring a multiplicity of suits and guarantee finality of litigation. It makes conclusive a final judgment between the same parties or their privies on the same issue by a court of competent jurisdiction. In the subject matter of the suit.

The scheme of Section 7 contemplates five conditions which when co-existent, will bar a subsequent suit. The conditions are:-

i) The matter directly and substantially in the subsequent suit must have been directly and substantially in issue in the former suit;

ii) The former suit must have been between the same parties or privies claiming under them;

iii) The parties must have litigated under the same title in the former suit;

iv) The court which decided the former suit must have been competent to try the subsequent suit; and

v) The matter in issue must have been heard and finally decided in the former suit.

See Lotta – Vs – Tanaki (2003) 2 EA 586.

The above are the legal principles guiding applicability of the doctrine of Res judicata and all are present in this matter as expounded above.

As to whether a preliminary objection can be well taken on Res judicata, it was held in Omondi – Vs - National Bank of Kenya Ltd & Others (2001) KLR 579; that:-

“The objection as to the legal competence of the plaintiffs to sue in their capacity as directors and shareholders of the company under receivership, and the plea of Res judicata are pure points of law which if determined in the favour of the respondents would conclude the litigation and they were accordingly well taken as objection ... In determining both points the court is perfectly at liberty to look at the pleadings and other relevant matter in its records and it is not necessary to file affidavit evidence on the matters ... what is forbidden is for counsel to take, and the court to purport to determine, a point of preliminary objection on contested facts or in the exercise of judicial discretionand therefore the contention that the suit is an abuse of the process of the court for the reason that the defendant’s costs in an earlier suit have not been paid is not a true point of preliminary objection because to stay or not to stay a suit for such reason is not done ex debito justitiae (as of right) but a matter of judicial discretion.”

In my view, the applicants in this case are seeking to face lift the pleadings to the Court of Appeal to evade the doctrine of Res judicata.

In the Court of Appeal case of Siri Ram Kaura – Vs – M.J.E. Morgan, CA 71/1960 (1961) EA 462 the then EACA stated that:-

“The general principle is that a party cannot in a subsequent proceedings raise a ground of claim or defence which has been decided on which, upon the pleadings or the form of issue, was open to him in a former proceeding between the same parties.

The mere discovery of fresh evidence (as distinguished from the development of fresh circumstances) on matters which have been open for controversy in the earlier proceedings is no answer to a defence of res judicata...

The law with regard to res judicata is that it is not the case, and it would be intolerable if it were the case, that a party who has been unsuccessful in litigation can be allowed to re-open that litigation merely by saying, that since the former litigation there is another fact going exactly in the same direction with the facts stated before, leading up the same relief which I asked for before, but it being in addition to the facts which I have mentioned, it ought now to be allowed to be the foundation of a new litigation, and I should be allowed to commence a new litigation merely upon the allegation of this additional fact. The only way in which that could possibly be admitted would be if the litigant were prepared to say, I will show that this is a fact which entirely changes, the aspect of the case, and I will show you further that it was not, and could not by reasonable diligence have ascertained by me before ...

The point is not whether the respondent was badly advised in bringing the first application prematurely; but whether he has since discovered a fact which entirely changes the aspect of the case and which could not have been discovered with reasonable diligence when he made his first application.

It is therefore not permissible for parties to evade the application of Res judicata by simply conjuring up parties or issues with a view to giving the case a different complexion from the one that was given in the former suit.”

In this case, the applicants having failed to persuade the court, seeking stay of execution and having failed to appeal against those decisions by Hon. Justice Okwengu, Hon. Justice Lenaola and Justice R.N. Sitati, have now decided to give the case a different complexion from the one that was in the former proceedings and are now alleging that they seek stay and are leave to appeal to the Court of Appeal because execution of decree against them by way of committal to civil jail is unconstitutional and offends Article 11 of the International Covenant on the Civil and Political Rights.

That oscillation, in my view, is an abuse of the court process. I am fortified by the holdings in the decisions of Beatrice Wanjku & Another – Vs – The Attorney General Petition No. 190 of 2011, where the court held that:

“The Civil Procedure Act and the Rules provide legal regime of arrest and committal as a means of enforcement of a judicial debt. Article 11 of the ICCPR states that “no one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation.”

I read the merely as used above to mean that one cannot be imprisoned for the sole reason of inability to fulfil a contractual obligation. It means that additional reasons other than inability to pay should exist for one to be imprisoned. Article 11 recognizes that in fact there may be instances where imprisoned for inability to fulfil a contractual obligation may be permitted. As there is no inconsistency between Article 11 of the Convention and the general tenor of the committal regime under Civil Procedure Act and Rules, the provisions of Article 11 of the Convention are at best an interpretative aid.”

In Jayne Wangu Gachoka – Vs – Kenya Commercial Bank Ltd Petition No. 51 of 2010 it was held that;

“The deprivation of liberty sanctioned by Sections 38 and 40 of the Civil Procedure Act is permissible and is not in violation of either the Constitution or the International Covenant on the Civil and Political Rights. The caveat, however, which has been emphasized in all the cases set out above, is that before a person can be committed to civil jail for non-payment of a debt, there must be strict adherence to the procedure laid down in the Civil Procedure Act and Rules which provide the due process safeguards essential to making the limitation of the right to liberty permitted in this case acceptable in a free and democratic society.”

I am further fortified by the holding in Kenya Bus Services Ltd & Others – Vs – Attorney General & Others [2005] IEA 111 where it was held:

“Fundamental rights cannot be enjoyed in isolation and by a selected few while they trample on others or tread upon their rights since the enjoyment of fundamental rights and freedoms contemplates mutuality and an atmosphere of respect for law and order including the rights of others and the upholding of the public interest. The function of the court when faced with the task of establishing or determining the limitation and restrictions on the other hand is to do a balancing act and in this balancing act are principles, values, objectives to be attained, a sense of proportionality and public interest and public policy considerations...

There cannot be a cause of action based on a lawful exercise of the right of execution by interested parties since it is a serious contradiction to suggest that creditors who are enforcing their rights under the private law should be stopped from so doing because there are allegations of violation of the Constitution by the state or government.”

The same issue was dealt with by Nyamu J and Weldon J in Braeburn Ltd – Vs – Gachoka & Another [2007] 2 EA 67 where it was held inter alia:

“.. The provision of Sections 38, 40 and 42 of the Civil Procedure Act and Order 21 Rules 32 and 35 of the Civil Procedure Rules are neither inconsistent with the relevant provisions of the Constitution nor are they in conflict with any of the provisions of the International Bill of Human Rights. It is further held that provided the procedure under the Civil Procedure Act and Order 21, Rule 32 and 35 is followed in the manner outlined therein, the requirements of due process comparable to that Section in Section 77 (1) and 77 (9) of the Constitution is guaranteed.”

It therefore follows that contrary to the submission by the applicant’s counsel, even if normal execution of decrees by committal to civil jail, as long as the safeguards under the relevant provisions of the Civil Procedure Act and Rules made thereunder are complied with, an, objection on their constitutionality of the procedure would not be upheld.

In any event, the applicants are saying they do not wish their properties to be attached and sold to settle the claim. What are they providing to the decree holder? Should the decree holder go remediless?

This court agrees with the submissions of the respondent that the applicant, by brining application after application on the same cause of action at different times one after another is hell bent to frustrate the respondent from realizing the judgment as awarded by the Co-operatives Tribunal and unless something is done, the respondent will forever be left baby sitting their barren decree. This state of affairs cannot be allowed to prevail under our current constitutional dispensation in light of the provisions of Article 48 of the Constitution which enjoins the state to ensure access to justice for all persons.

Hon. Justice G.V. Odunga in Republic – Vs – Attorney General and Another Exparte James Alfred Koroso, expressed himself thus on the issue of access to justice:-

“Access to justice cannot be said to have been ensured when persons in whose favour judgments have been decreed by courts or tribunals of competent jurisdiction cannot enjoy the fruits of their judgments due to road blocks placed on their paths by actions or inactions of others.”

I agree with the above expression and add that Article 159 (2) (b) of the Constitution mandates that justice ought not to be delayed. To take a successful litigant into a circular frolic expedition, when sufficient concessions have been availed to the applicant to settle decree would be to turn the legal process into a theatrical absurdity. For example, in the earlier application, the applicants alleged that their property which their families rely on for support, if sold would occasion them substantial loss. They have now oscillated stating that they are unable to settle the decree and if they are committed to civil jail, this will infringe on their fundamental rights to liberty and dignity as protected and guaranteed under the Constitution hence, the need to move to the Court of Appeal to challenge execution in that manner. They are not saying that they are apprehensive that due process is not being followed in executing the decree against them.

For the above reasons and exposition, I am satisfied on the preliminary point of law raised by the respondent that notwithstanding the fact that under Section 81 of the Co-operative Societies Act, an aggrieved party to an interlocutory application can lodge an appeal to the Court of Appeal, that right, in my view, in this particular case, is extinguished by the application of the doctrine of Res judicata which has been established in this preliminary objection.

To support this proposition, I am fortified by the Court of Appeal decision in CA 36/96 in the case of Uhuru Highway Development Ltd – Vs – Central Bank of Kenya, Exchange Bank Ltd (in voluntary liquidation) and Kamlesh Mansukhlal Pattni where the court in an earlier application ruled that the application before it was Res judicata as the issue of injunction had been twice rejected both by the High Court and the Court of Appeal on merits and that the ruling by the High Court had not been appealed against. The court further emphasized that the same application having been finally determined “thrice by the High Court and twice by the Court of Appeal”, it could not be resuscitated by another application.

In dismissing that appeal, following elaborate considerations on Res judicata doctrine, the Court of Appeal considered that what was before it was whether a matter of interlocutory nature decided in one suit can be subject of another similar applications in the same suit. In other words, does the principle of Res judicata apply to an application heard and determined in the same suit? The Court of Appeal referred to the case of Ram Kirpal – Vs – Rup Kuari (I.L.R.) Vol VI 1883 Allahabad Series where the privy council sitting on appeal from a decision of the full bench of Allahabad High Court said:

“The questions, if the term res judicata was intended, as it doubtless was, and was understood by the full Bench to refer to a matter decided by a court of competent jurisdiction in a former suit, was irrelevant and inapplicable to the case. The matter decided by Mr Probyn was not decided in a former suit, but in a proceeding of which the application, in which the orders reversed by the High Court were made, was merely a continuation. It was as binding between the parties and those claiming under them as an interlocutory judgment in a suit is binding upon the parties in every proceeding in that suit, or as a final judgment in a suit is binding upon them in carrying the judgment into execution. The binding force of such judgment depends not upon Section 13 Act 1 of 1877 but upon the general principles of law. If it were not binding, there would be no end to litigation.”

The privy council, according to the Court of Appeal was saying in the above case that they were concerned about the desirability of bringing an end to litigation and went on to say that the Section 13 of Act 1 of 1877 which is equivalent to Section 7 of or Civil Procedure Act was not exhaustive; and that the law or Res judicata did apply to a matter decided in the same suit and that upon its general principles it applied to interlocutory proceedings in the same suit.

The Court of Appeal further stated that:

“That is to say, there must be an end to applications of similar nature, that is to further, under principles of Res judicata apply to applications within the suit. If that was not the intention, we can imagine that the courts could and would be mandated by new applications filed after the original one was dismissed. There must be an end to interlocutory applications as much as there ought to be an end to litigation. It is this precise problem that Section 89 of or Civil Procedure Act caters for.”

In yet another Court of Appeal case of Mburu Kinyua – Vs – Gachini Tuti (1978) KLR 69, the majority of the Bench held that a second application to set aside a judgment entered exparte would be res judicata when the fact upon which it was based were known to the appellant.

Thus, in this case, this court must act, whether or not there is a right of appeal. I am further fortified by the decision cited with approval in Uhuru Highway Development Ltd (Supra) case that in the case of Yat Tung Investment Co. Ltd – Vs – Dao Hring Bank Ltd (1975) AC 581, 590 that:

“where a given matter becomes the subject of litigation in, and adjudication by a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not, except under special circumstances, permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of the case. The plea of res judicata applies except in special cases, not only to points upon which the court was actually required by parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at that time.”

The fact of committal to civil jail in execution of the decree before the tribunal cannot be said to have been outside the applicant’s knowledge. And the allegations that such committal is an infringement of their fundamental rights too cannot be said to be new matters. With respect, the applicants cannot be allowed to have a second bite at the cherry.

As was properly put forward by Law JA in the Kinyua – Vs Gachini Tuti case (Supra)

“To sum up my view of this aspect of the case, an applicant whose application to set aside an exparte judgement which has been rejected has a right of appeal ... Alternatively, he may apply for a review of the decision, under Section 80 of the Civil Procedure Act. He can only successfully file a second application if it is based on facts not known to him at the time he made the first application. If the facts were known to him, his second application will be dismissed as res judicata, as happened hereof.

The position otherwise would be intolerable. A decree holder could be deprived of the benefit of his judgment by a succession of applications to set aside the judgment and the judges would in effect be asked to sit on appeal over judges. And as regards Madan JA’s expressed feeling that justice can only be done by giving the appellant the right to defend, I would respectfully point out that there are always two aspects to the concept of justice. A successful litigant is convinced that justice has been done, the loser is unlikely to share that view.”

Accordingly, and on the basis of my above exposition of the law and cited authorities, I find that there are no maters that need to be canvassed in a trial of the applicant’s application dated 25th September 2014 on the merits and elements thereof; as the preliminary objection effectively disposes of that application entirely.

I therefore dismiss the applicant’s application dated 25th September 2014 on all limbs with costs to the respondent.

Dated, signed and delivered at Nairobi this 27th day of November, 2014

R.E. ABURILI

JUDGE