[2013] KEHC 6473 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO.292 OF 2012

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GREENFIELD INVESTMENTS LIMITED...........................1ST PETITIONER

SULTAN HASHAM LAIJI...................................................2ND PETITIONER

AND

THE STATE OF THE REPUBLIC OF KENYA.................1ST RESPONDENT

THE ATTORNEY GENERAL...........................................2ND RESPONDENT

THE COMMISSIONER OF LANDS...............................3RD RESPONDENT

BABER ALIBHAI MAWJI............................................4TH RESPONDENT

RULING

1. I am required in this Ruling to determine two matters, namely;

i)Preliminary Objection filed by the 2nd Respondent, the Hon. Attorney General on 24/7/2012, and

ii)A Notice of Motion filed by the 4th Respondent, Baber Alibhai Mawji, premised on the inherent powers of this Court

2. For elegance, I will first deal with the Preliminary objection which is premised on the following grounds;

“1) That this Honourable Court lacks the jurisdiction to hear and determine the Petition herein as doing so would be tantamount to supervising, reviewing or entertaining an appeal from a Court of concurrent jurisdiction.

2)That from the Petitioner's pleadings it is apparent that the matters in issue are Res judicata.

3)That the Petitioner is seeking declarations against decisions of the High Court, Court of Appeal and Supreme Court.

4)That no action can lie against a Court of law in the discharge of its judicial functions.

5)That the Petition is filed contrary to public policy in that it will render litigation indeterminate.

6)That the Petition is bad in law.”

3. I have read the record in this matter and whether by accident or design, there is no record of any written Submissions by Mr. Bitta, learned Principal State Counsel, who filed the Notice of Preliminary Objection. It may well be that he filed those Submissions and they are somewhere in the Court Registry. I do not know because I do not have them.

4. Nonetheless, he also filed together with the notice aforesaid, two decisions;

a)Nairobi Civil Appeal No.203 of 2006 – Peter Muiruri vs Credit Bank Ltd & Others – the gist of the Court of Appeal's decision in that case is that one administrative Division of the High Court (the Constitutional and Judicial Review Division) cannot, by styling itself, “the Constitutional Court” purport to review a decision of the Court of Appeal nor can it purport to sit on appeal over matters determined by other Divisions of the High Court.

The decision seems to be in line with objection No.1 above.

b)Nairobi H.C. Petition No.130 of 2009, Bernard Ombeni vs The Attorney-General & Anor – in this case, Wendoh, Dulu and Ali- Aroni, JJ held that the Court lacked jurisdiction to “supervise review or entertain an appeal from a Court of concurrent jurisdiction” and proceeded to strike out the Petition before it. Again, the decision seems to be in line with objection No.1 above.

5. I have scoured the record and there seems to be no response by either the Petitioners or any of the Respondents to the issues raised in the Notice of Preliminary objection.

6. Turning to the Notice of Motion dated 23/7/2012, save for the prayer relating to costs, the 4th Respondent seeks the singular but final prayer, “that the Petition herein be struck out”. The Motion is supported by the Affidavit of Babe Alibhai Manji, sworn on 23/7/2012 and his case is best captured by a reproduction of the grounds in support of the Motion which are that;

“1)The entire Petition is an abuse of the Court process and a veiled appeal to the High Court against a final decision of the Court of Appeal as follows;

i)On 30th July 2003, following a trial of Civil Case No.3655 of 1995, the High Court decreed that the Applicant is entitled to all that property known asL.R. No.214/273 (the suit property).

ii)Being dissatisfied with that decision, the 1st Petitioner preferred an Appeal in the Court of Appeal which was dismissed on 30th April 2010. Pursuant to a final decree of the Court of Appeal, I became the registered owner of the suit property.

iii)Upon establishment of the Supreme Court following the promulgation of the new Constitution, the 1st Petitioner preferred an application for leave to appeal in the Supreme court not withstanding that the decision sought to be appealed against was delivered before the new Constitution came into force.

iv)Nonetheless, by an order made by the Supreme Court on 1/3/2012, the 1st Petitioner was directed to file its Application for leave in the Court of Appeal which it filed on the 30/4/2012. That Application is still pending determination.

v)In execution of the final decree of the Court of Appeal, the High Court directed that the title deed for the suit property be deposited into Court and by a further order made on 2/4/2012, the High Court directed that the title deed be released to the Applicant.

vi)The issues raised in the Petition are therefore a camouflage. The intention of the Petitioner is to obtain, by trick or stealth, an injunction which they have been unable to obtain in the Court of Appeal and the Supreme Court. This is an abuse of Court process.

vii)The High Court lacks jurisdiction to entertain such a Petition under Article 165(6) of the Constitution.

2)The Petitioners have no right over the suit property capable of being infringed upon since the suit property is registered in the name of the Applicant. To find a course of action for the protection of a fundamental right, the right should be clear and valid.

3)The Constitutional Court has previously held in Petition No.48 of 2010, Selassie Waigwa Karuoro vs Commissioner of Lands & 2 Othersthat in order for a party to come to Court seeking protection of a right, it should have a clear and valid claim, one that the Court does not need to establish by close examination of the evidence or by calling witnesses.

4)Registration of the suit property in the Applicant's name in execution of a lawful decree of Court cannot amount to arbitrary deprivation of property under Article 40 of the Constitution.

5)Vesting of the suit property in [the] Applicant's name was pursuant to a fair hearing conducted by Courts of competent jurisdiction and in which the 1st Petitioner was ably represented by Counsel.

6)The High Court is functus officio having conclusively considered the issue of ownership of the suit property and upheld the Applicant's claim.

7)The institution of this Petition is a veiled attempt at re- litigating the issue of ownership of the suit property which is Res-judicata and/or debarred by the doctrine of issue estoppel.

8)Its a cardinal principle of the Rule of Law under which the Constitution is under pinned that litigation must come to an end.”

7. The Petitioners did not file any Replying Affidavit (so far as I can see from the record) but chose instead to file a statement of Grounds of Opposition dated 18/9/2012 which raised the followings issues;

“1)That at the time the Constitution of Kenya 2010 (the Constitution) came into force the 1st Petitioner was the registered proprietor of L.R.214/273 (the property) as well as the part to Civil case No.3655 of 2003 (the Suit)and Civil Appeal 155 of 2004 (the Appeal). It is not denied that the 1st Petitioner's title to the Property was taken away from it after the promulgation of the Constitution on 27th August 2010. It is NOT sought to challenge the judgment of the High Court delivered on 30th July 2003 or the Court of Appeal delivered on 30th April 2010 (the judgments) in this forum. For the purposes of this Petition before this Court it is accepted that until and unless overturned by the Supreme Court, the judgments delivered before the Constitution came in force are valid and in accordance with the law then prevailing before the Constitution. However, the argument of the Petitioners is that the Constitution changed everything so that between 2/2/2012 and 2/4/2012 when the Petitioner's title was taken away from it by the Registrar of Titles with or without the assistance of the High Court (Justice Nyamweya and Justice Kimondo) such an act in these circumstances constituted a breach of the petitioners' fundamental rights and freedoms under Article 40(3) and that the Constitution prevails over any determination of the Court of Appeal on the domestic law made by it in April 2010 thus rendering the implementation of the judgments unconstitutional.

2)This argument is not res judicata because Article 40(3) of the Constitution did not exist at the time the judgments were delivered.

3)That the matters raised in the Petition dated 13/7/2012 relate to he breach of the Petitioners' fundamental rights and freedoms provided by the Constitution including;

i) Their right to property under Article 40

ii) Access to justice pursuant to Article 48

iii) Their right to a fair hearing provided by Article 50; and

iv) heir right to administrative action that is “expeditious, efficient, lawful, reasonable and procedurally fair” as provided by Article 47.

4)The infringement of the above rights which form the Petition is completely dissimilar from the grounds of and not even an issue in the Suit under which the 4th Respondent inter alia sought to be declared the registered owner of L.R.214/273 by adverse possession or in the Appeal and therefore the principle of res-judicata does not apply.

5) The High Court is no barred by Article 165(6) as the decision of the Court of Appeal in the appeal is not being challenged in this forum (but is sought to be before the Supreme Court). Therefore the High Court is not exercising any supervisory jurisdiction over the Court of Appeal, or any other court but instead the Petitioners' are invoking the High Court's jurisdiction under Article 165(3) (b), (c), (d) and (e) as the Court of first instance in any constitutional matter including matters concerning the Supreme Court.

6)As to ground No.2 of the Application, it is the very registration sometime between 2/2/2012 and 2/4/2012 of the property in the name of the Applicant which is being challenged as unconstitutional and a breach of Article 40(3) notwithstanding the court of Appeal determination.

7)As to ground No.3 of the Application, the facts and history of events are NOT disputed and do not require examination by evidence.

8)There is no attempt to relitigate the issue of the property, res-judicata or issue of estoppel. The issue of the Petitioners' constitutional rights and freedoms were never canvassed before the High Court or the Court of Appeal.

9) Curtailing, breaching and disregarding constitutional rights and freedoms cannot be excused or validated in the name of bringing litigation to an end, particularly when such breach will result in an unmeritorious and undeserved windfall for the Applicant.

10)The Petition does not dispute the judgment entered by Justice Kuloba in the Suit and therefore this Court cannot be functus officio.

11)The issue of the Petitioners' right to a fair hearing under Article 50 relates to the unconstitutional refusal by the Supreme Court to hear the petitioners' application for leave and the inordinate and excessive delay at the Court of Appeal (stretching years) to hear any application for leave to appeal to the Supreme Court including the leave to appeal from the Appeal. The Petitioners have not raised the issue of a fair hearing in the Suit as the Applicant submits in the Application.

12) The Petitioners submit that the registration of the property was unconstitutional as the registration was contrary to the provisions of Article 40(3) as it constitutes deprivation by the State. Contrary to ground No.4 of the Application, the Petitioners' right under Article 40(3) which the Petitioners plead had been infringed does not require the establishment of “arbitrary” deprivation but only requires the establishment of “deprivation” which is not saved by Article 40(3) (a) and (b).”

8. Save for the 1st, 2nd and 3rd Respondents, other Parties (Petitioners and 4th Respondents) filed elaborate Submissions and a list of authorities which I have read and will advert to in due course.

9. Before I frame the issues that I consider pertinent in disposing of the Preliminary Objection and the Motion, a factual background to this matter is important and the Submissions by learned Counsel for the petitioner are elaborate in that case. I gather that it was the 4th Respondent who initiated litigation between the parties when he filed HCCC No.3655 (O.S.) of 1995 where he obtained orders that land parcel number 214/273 (originally No.214/42/1/2) be registered in his name. The Judgment was given by Kuloba, J. who based his decision on the doctrine of adverse possession.

10. Dissatisfied with the decision, the 1st Petitioner, Greenfields Investments Ltd, filed Civil Appeal No.155 of 2004 which was heard and by a Judgment delivered on 30/4/2010, the Court of Appeal dismissed the Appeal and upheld the decision rendered by Kuloba, J.

11. The 1st Petitioner by a Motion filed in the Supreme Court on 15/11/2011, then sought leave to lodge an appeal in that Court but the same was declined by an order of Tunoi, Wanjala, SCJJ, issued on 7/3/2012. The 1st Petitioner did not tire but returned to the Court of Appeal and filed an Application for leave to appeal to the Supreme Court and in Submissions before me, learned advocate for the Petitioners stated as follows in that regard;

“...despite repeated requests, and five months having elapsed, the Court of Appeal has not given any date for the hearing of the Application for leave and continues to be unable to give any such date”.

12. The 4th Respondent, even as the above Application for leave was pending, returned to the High Court in HCCC 3655 (O.S.) of 1995 and commenced proceedings to execute the Judgment in his favour. On 28/3/2012, Kimondo J. ordered that the title documents for the property, (which had been deposited in Court pursuant to an order issued by Nyamweya J. on 2/2/2012) be released to the 4th Respondent. On 13/7/2012, the present Petition was filed and the final orders sought are the following;

“i)A declaration that the transfer of the property to the 4th Respondent is in breach of Article 40 of the Constitution notwithstanding the judgment of the Court of Appeal issued prior to the promulgation of the Constitution of Kenya 2010.

ii)A declaration that the orders of the High Court requiring the Petitioners to make delivery of the title documents in respect of the Property to the 4th Respondent is inconsistent and in breach of Article 40 the Constitution and void as being unconstitutional.

iii)A declaration that the failure of the Court of Appeal and the Supreme Court of Kenya to hear the Application for leave to appeal from the judgment of the Court of Appeal despite nearly two years having passed since the Constitution was promulgated thus enabling the 4th Respondent to enjoy his totally unmerited windfall and deprive the petitioner of recourse to justice and a remedy to reverse the unfortunate development leading to loss of the property is a breach of the Petitioners' rights to access to Justice (Article 50) and Fair Administrative Action (Article 47).

iv)An order injuncting and restraining the 3rd and 4th Respondents,whether by themselves, their agents, employees, assigns, servants or otherwise howsoever and any person whatsoever be restrained from selling, disposing of, charging, pledging, diluting or intermeddling in any manner whatsoever with the Property.

v)An order to reinstate and re-transfer the Property back to the 1st Petitioner.

vi)The honourable Court do issue such orders and give such directions as it may deem fit to meet the ends of justice and remedy the breach of the Petitioners constitutional rights.

vii)The costs of the Petition be awarded to the Petitioner.”

13. The above facts flow from the record of all the Superior Courts mentioned i.e. the High Court, the Court of Appeal, and the Supreme Court and no party has, and can properly, contest them.

14. With that background, it seems to me that there are only three issues that require determination at this stage;

i)whether this Court has jurisdiction to determine the Petition dated 13/7/2012 and to grant the prayers sought therein.

ii)whether the issues in contest are res judicata and therefore,

iii)whether the respondents are entitled to the prayer that the Petition should be struck out with costs to them.

15. On jurisdiction, I can only but repeat the oft-quoted words of Nyarangi J. in Owners of Motor Vessel Lillian”s” vs. Caltex Oil (K) Ltd. [1989]KLR I where the learned judge stated that jurisdiction is everything and where it is found, conclusively, that a Court has no jurisdiction to determine a matter placed before it, then it must down its tools and not take one more step.

16. Further, “jurisdiction” has been defined in Words and Phrases Legally Defined (2nd Edition, volume 3) to mean;

“... the authority to which a Court has to define matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by statute, Charter or Commission under which the Court is constituted, and may be extended or restricted by like means ...”

I adopt the above definition in finding that the jurisdiction that the High Court had, under the Repealed Constitution, 2010 has not changed much although it is more well defined and detailed in the Constitution, 2010. It can be summarised as “unlimited original jurisdiction in criminal and civil matters” which was the wording in Section 60 of the Repealed Constitution and now Article 165(3)(i) of the Constitution, 2010. The limitation to jurisdiction under Article 165(5) of the Constitution is important but not relevant to the present proceedings. Section 67 of the Repealed Constitution is now Article 165 of the Constitution and both deal with the powers of the High Court to interprete the Constitution.

17. Further, the Court of Appeal and Supreme Court have defined appellate jurisdiction under Article 163(3) and (5) of the Constitution, 2010 and previously the Court of Appeal had exclusive jurisdiction to determine appeals from the High Court under Section 64of the Repealed Constitution.

18. This background is important because the High Court cannot assume jurisdiction which it lacks and cannot in that regard exercise jurisdiction which is conferred on another and more superior Court.

19. I have in that context elsewhere above, reproduced the prayers in the Petition before me. Prayers No.(i) and (v) challenge the decision by Kuloba J. in HCCC No.3655 of 1995 and I am being asked to declare that “the decision is in breach of Article 40 of the Constitution”. The same prayer seeks that I should do so “notwithstanding the judgment of the Court of Appeal issued prior to the promulgation of the Constitution.”

20. Prayers No.(ii), (iv) and (v) seek that I should declare the decision issued by Kimondo J. in HCCC No.3655 of 1995 on 28/3/2012 to be in breach of, and inconsistent with, Article 40 of the Constitution.

21. Prayer (iii) seeks that I should make declarations that failure by the Court of Appeal and the Supreme Court of Kenya to expeditiously dispose of applications for leave to appeal placed before them by the 1st Petitioner is in breach of the Petitioners' rights to access to justice (Article 50) and fair Administrative action (Article 47).

22. I have taken note of the Submissions by Counsel for the Petitioners on the right to property, and the interesting argument by them that there is no contention by them that there has been deprivation of property under Article 40(2) of the Constitutionalthough theJudgment of Kuloba J. actually did so. Another interesting submission is that the High Court is a “Court of first instance in any constitutional matter including matters concerning the Supreme Court”

23. It is also the Petitioner's argument that serious constitutional issues have been raised in the Petition and novel as they may be, “that does not make them subject to striking out. Instead that is all the more reason therefore for this Court to give such arguments the opportunity to be heard and not simply shut the door at this stage … without a hearing”

24. Sadly, on consideration of the issue of jurisdiction, I do not share the Petitioners' optimism above their case save that I agree with them that at this stage I need not consider the merits of their case, but again my reasons for doing so are different. I say so because;

Firstly, regarding HCCC No.3655 of 1995, Kuloba J. sat as a judge of concurrent jurisdiction and delivered a judgment which was upheld by the Court of Appeal. The merits of the case by the Petitioners was thereafter settled unless they manage to overturn the decisions of both court at the Supreme Court and even as I write, they have not done so and the two judgments stand firmly.

25. Similarly, Kimondo J. is a judge of concurrent jurisdiction and his orders were merely executionary of the decisions of Kuloba J. and the Court of Appeal and cannot by themselves be viewed as if they are separate and be challenged separately.

26. In that regard, it is trite that this Court cannot purport to sit as a supervisor or superintendent of a concurrent Court or purport to determine by way of an appeal (by whatever other name called) a decision of such a Court. It baffles this Court why litigants who are ably represented by Counsel, such as the Petitioners in this case, cannot see that under Section 60 of the Repealed Constitution and Article 165 of the Constitution, 2010 there is only one High Court. That High Court can only exercise jurisdiction conferred on it by the Constitution and not by itself, the Chief Justice or litigants. The setting up of Divisions of the High Court at Nairobi and Mombasa does not thereby create other High Courts with some strange and unconstitutional titles such as “the Constitutional Court of Kenya” Divisions are merely administrative in nature and that was why the Court of Appeal in Peter Muiruri (supra) went into great lengths to explain that fact. This Court has consistently followed that decision in dispelling the fallacy that the Constitutional and Human rights Division of the High Court of Kenya at Nairobi is a special Court with extraordinary jurisdiction to sit outside the hierarchy of Courts and overturn any decision it deems unconstitutional whether it was issued by another High Court Judge, the Court of Appeal or the Supreme Court. That fallacy is well seen in this case and in answer, this Court noted in the case of Philip Moi vs Pluda Moi Petition No.65 of 2012;

“...I must begin by dispelling the fallacy that the Constitutional and Human Rights Division of the High Court in Nairobi has jurisdiction to superintend, supervise, direct, guide, shepherd and/or purport to mend the mistakes, real or perceived, of other Divisions of the High Court in Nairobi or elsewhere in Kenya. Inspite of the continued and consistent stand of Judges of that Division that it cannot have been the intention of the framers of the Constitution that such a position should exist, parties in every conceivable case, continue to invoke that fallacious and misguided jurisdiction.”

When a controversy of a similar nature arose in the case of Peter Muiruri Case the Court of Appeal firmly held as follows;

“There is no provision in the Constitution which establishes what Nyamu J. referred to as the Constitutional Court. In Kenya we have a Division of the High Court at Nairobi referred to as “Constitutional and Judicial Review” Division. It is not an independent Court but merely a Division of the High Court. The wording of Section 67 of the Constitution which donate the power to the High Court to deal with questions of interpretation of Sections of the Constitution or parts thereof does not talk about a Constitutional Court. Instead it talks about the High Court.

With regard to the protective provisions, Section 84 of the Constitution does not in any of its sub-sections talk about the Constitutional Court. Instead it talks about an Application being made to the High Court.

In view of what we have stated above, it is quite clear that Nyamu, J.’s remarks which we earlier reproduced were based on the mistaken belief that the Constitution had created a Court called the Constitutional Court with supervisory powers over all other Courts. The Hon. The Chief Justice must have been aware that no such Court is established under the Constitution and that, we think, would explain why he created a Constitutional Division and not a Constitutional Court. The creation of the Constitutional and Judicial Review Division was an administrative act with the sole object of managing the cause list. The Chief Justice would have no jurisdiction to create a Constitutional Court as opposed to creating a Division of the High Court.

Any single judge of the High Court in this country has the jurisdiction and power to handle a constitutional question. The fact that a Constitutional Division was established did not by such establishment create a Court superior to a single judge of the High Court sitting alone. It would be a usurpation of power to push forward such an approach and whatever decision which emanates from a Court regarding itself as a Constitutional Court with powers of review over decisions of judges of concurrent or superior jurisdiction such decision is at best a nullity. Courts must exercise the jurisdiction and powers vested in them. …

To conclude on this aspect, it is our view and we hold that Nyamu J. raised and considered this issue to give him the opportunity of answering his critics and to popularize his view as to the scope and extent of the jurisdiction and powers of his Division. The Law is not on his side. If his views were to be allowed to gain currency we opine that confusion in the administration of justice will be engendered and disharmony will ensue among judges of the High Court.”

That decision holds as true then under the Repealed Constitution, as it does now under the Constitution, 2010. The Constitutional and Human Rights Division which is one of the twin successors to the Constitutional and Judicial Review Division aforesaid is not, the “Constitutional Court”. References to it as such to the exclusion of the High Court established under Article 165 of the Constitution is a misnomer, capable of deceiving the unschooled in Constitutional matters. Article 165 of the Constitutionprovides as follows;

“(1)There is established the High Court, which—

(a) shall consist of the number of judges prescribed by an Act of Parliament; and

(b) shall be organised and administered in the manner prescribed by an Act of Parliament.

(2)...

(3)Subject to clause (5), the High Court shall have—

(a) unlimited original jurisdiction in criminal and civil matters;

(b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;

(c) jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144;

(d) jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of-

(i)the question whether any law is inconsistent with or in contravention of this Constitution;

(ii)the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;

(iii)any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and

(iv)a question relating to conflict of laws under Article 191; and

(e) any other jurisdiction, original or appellate, conferred on it by legislation.

(4)Any matter certified by the Court as raising a substantial question of law under Clause (3) (b) or (d) shall be heard by an uneven number of judges, being not less than three, assigned by the Chief Justice.

(5)The High Court shall not have jurisdiction in respect of

matters—

(a) reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; or

(b) falling within the jurisdiction of the courts contemplated in Article 162 (2).

(6)The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior Court.

(7)For the purposes of Clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in Clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice”.

Nowhere above is there mention of the “Constitutional Court” in the above Article or indeed in the whole Constitution. Neither is there mention of a superior Division of the High Court called the “Constitutional and Human Rights Division,” with wide powers over other Divisions or Stations of the High Court. Sub-Article 6 is important to note because even in its supervisory role, the High Court cannot purport to supervise other superior Courts as defined in Part 2 of Chapter 10 of the Constitution. Superior Courts include the High Court which means that no judge or judges of the High Court can purport to supervise other judges of the High court or even the courts with the status of the High Court established under Article 162(2) of the Constitution – i.e the employment and labour relations and environment, use and occupation, of and title to land, Courts.

27. I adopt the same reasoning in this case and I shall say no more. Secondly, I know no law nor do I know any other legal authority which confers on this Court the jurisdiction to purport to sit on appeal or supervise and thereby review, set aside or otherwise overturn a decision of the Court of Appeal, the High Court or the Supreme Court. To do so would amount to judicial heresy. I say so because the system of our Courts is vertical hierarchy where Courts in the lower ranks defer to those in the higher ranks. Article 162 of the Constitution ranks superior Courts in that order as being the Supreme Court, the Court of Appeal, the High Court and the Courts mentioned in Article 162(2) i.e. the employment and labour relations Court and the environment and use of occupation of, and the title to land, Court. The High Court is specifically denied jurisdiction in matters reserved exclusively to the Supreme Court and the Courts mentioned in Article 162(2) and under Article 164(3)(a), any party dissatisfied with the decisions of the High Court may appeal to the Court of Appeal and thereafter to the Supreme Court under Article 163(3)(b) of the Constitution.

28. It is therefore clearly another fallacy for the Petitioners to invoke Article 165(4)(d)of the Constitution to argue that in its mandate to interprete the Constitution, the High Court can recall matters pending or determined by the Court of Appeal and/or the Supreme Court (including appeals from itself) and purport to determine whether the two Courts above it have acted constitutionally. The argument in that regard is not novel; it is outrightly unconstitutional – see Peter Muiruri (supra).

29. I am of the firm view that this Court, for the above reasons, has no jurisdiction to determine the issues sought to be ventilated in the Petition herein.

30. On res judicata, all parties have made exhaustive Submissions on the applicability of the doctrine and had I followed the dictum of Nyarangi J. in Owners of Motor Vessel Lillian”S” (supra),i would have downed my tools but for obvious reasons, I cannot.

31. Res judicatais a doctrine that generally means that once a matter is judicially decided, it is finally decided - see Richard Kariuki vs Leonard Kariuki & Anor, Nairobi H.C. Misc Appl No.7 of 2006 and Section 7 of the Civil Procedure Act.

32. I have elsewhere above reproduced the history of this dispute and it is obvious to me that there is little to be said on this aspect of the issue before me. Parties litigated both before the High Court and the Court of Appeal. Both Courts looked at the merits of their respective cases and determined that the present Petitioners have no credible case. The Supreme Court declined to hear them on account of procedure and their attempt at getting back there is a matter in the hands of the Court of Appeal.

33. The merits of the case has been settled notwithstanding whatever Application is pending before the Court of Appeal and this Court is specifically implored by Section 7 of the Civil Procedure Act and all known authorities on res judicata, not to re-open the issues in contest. This Court can only abide by that edict and declare the present proceedings barred by fact of res judicata.

34. Lastly and as I conclude, I am being asked by the Respondents to strike out the Petition, Madan J. A in D.T. Dobie, [1982 – 1988]KLR I stated as follows, regarding the draconian power to strike out a pleading;

“No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no cause of action, and is so weak as to be beyond redemption and is incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a Court of justice ought not to act in darkness without the full facts of a case before it”

35. I am wholly guided and to my mind, the Petition before me is not just hopeless. It is an abuse of Court process and was filed with only one obvious intention; to deny the 4th Respondent's the fruits of his judgment for as long as possible. Litigation must come to an end and the Petitioners must be told so.

36. There is nothing more to say. The Preliminary Objection and the Notice of Motion are clothed with merit and the consequence of my findings above is that the Petition dated 13/7/2012 is hereby struck out with costs to the 2nd, 3rd and 4th Respondents.

37. Orders accordingly.

DATED, DELIVERED AND SIGNED AT NAIROBI THIS 6TH DAY OF JUNE, 2013

ISAAC LENAOLA

JUDGE

In the presence of:

Florence – court clerk

Mrs. Abdalla for Petitioner

Mr. Mwangi for 4th Respondent

No appearance for other Parties

Mr. Bitta for 2nd and 3rd Respondent

Order

Ruling delivered.

ISAAC LENAOLA

JUDGE

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