[2013] KEHC 5244 (KLR)
The court found that the two suits in question were based on different causes of action: the present suit was grounded in tort (illegal arrest, false imprisonment, malicious prosecution), while the other suit (Nairobi Misc Application No. 1411 of 2004) was a constitutional reference for violation of fundamental...
Source-derived case information.
- Citation
- [2013] KEHC 5244 (KLR)
- Parties
- Plaintiff: Harun Thungu Wakaba; Defendant: The Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 6031 of 1991
- Procedural Posture
- Civil Case / Ruling on Post Judgment Applications to Set Aside Judgment and Strike Out Suit
- Outcome
- applications dismissed with costs to the plaintiff
- Judges
- DW Mbuteti
- Legal Topics
- Illegal Arrest, False Imprisonment, Malicious Prosecution, Abuse of Process, Res Judicata, Constitutional Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Harun Thungu Wakaba
Plaintiff
The Attorney General
Defendant
Procedural Posture
Civil Case / Ruling on Post Judgment Applications to Set Aside Judgment and Strike Out Suit
Legal Issues
- 1 Whether the present suit was an abuse of court process due to a prior suit allegedly based on the same cause of action.
- 2 Whether the causes of action in the two suits (tort claim and constitutional reference) were the same or distinct.
- 3 Whether the judgment in the earlier suit should be set aside or the suit struck out.
Ratio Decidendi
The court found that the two suits in question were based on different causes of action: the present suit was grounded in tort (illegal arrest, false imprisonment, malicious prosecution), while the other suit (Nairobi Misc Application No. 1411 of 2004) was a constitutional reference for violation of fundamental rights and freedoms. The damages awarded in each suit corresponded to these distinct legal bases. Furthermore, the judgment in the present suit was delivered before the judgment in the constitutional reference. Therefore, there was no abuse of process or duplicity, and no basis to set aside the judgment or strike out the suit. The applications by the Defendant were dismissed with...
Court Disposition
applications dismissed with costs to the plaintiff
Orders
- The Defendant's applications to set aside the judgment and strike out the suit are dismissed with costs.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
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HARUN THUNGU WAKABA.........................................PLAINTIFF/DECREE HOLDER
VERSUS
THE ATTORNEY GENERAL.................................DEFENDANT/JUDGMENT DEBTOR
R U L I N G
1. The Plaintiff filed suit herein on 23rd October 1991 against the Attorney-General (on behalf of the Kenya Police) claiming general damages on account of illegal arrest, illegal detention, assault, torture and malicious prosecution.
2. The Defendant filed defence and denied the Plaintiff’s claims.
3. Eventually the suit went to full trial.
4. In a judgment dated and delivered on 7th December 2009 (Ali-Aroni, J) the Plaintiff was awarded general damages of KShs 1. 7 Million. He was also awarded costs of the suit. Decree issued.
5. Unsuccessful efforts to have the Defendant pay the decretal sum resulted in the Plaintiff filing notice of motion dated 15th December 2011 in order to compel the Defendant by contempt proceedings to pay up.
6. In the meantime the Defendant had filed chamber summons dated 22nd March 2010 and later notice of motion dated 23rd December 2012in which he sought two main orders –
(i)that the court be pleased to set aside the judgment herein dated and delivered 7th December 2009; and
(ii)that the court be pleased thereafter to strike out the suit herein with costs.
This ruling concerns those two applications.
7. The main point taken in the two applications is that after judgment in the present suit the Defendant discovered that the Plaintiff had “filed another suit in respect of the same cause of action being Nairobi Misc Application No. 1411 of 2004 where he obtained judgment which was satisfied”, and that therefore the present suit was an abuse of the process of the court.
8. The Plaintiff opposed the applications by replying affidavits filed on 12th January 2012. The main points taken are –
(i)that the judgment in the Nairobi Misc Application No. 1411 of 2004 was given before the judgment herein; and
(ii)that the causes of action in both suits are different.
9. The applications were canvassed by way of written submissions which I have read and considered, together with the authorities cited. I have also perused the papers concerning Nairobi Misc. No. 1411 of 2004. This case was a constitutional reference under section 84 of the then Constitution of Kenya. The Plaintiff alleged violation of various fundamental rights and freedoms under sections 70, 72, 74, 77, 78, 79, 80 and 82 of that Constitution and sought various damages undersection 84(2) of that Constitution.
10. The reference was heard together with several other similar constitutional references filed by other persons. In a consolidated judgment dated and delivered on 21st July 2010(Okwengu, J as she then was) the Plaintiff was awarded general damages of KShs 3 million.
11. As already seen the present suit (Nairobi HCCC No. 6031 of 1991) was based on the torts of illegal arrest, false imprisonment and malicious prosecution.The damages awarded were based on those pleaded torts. On the other hand, Nairobi HC Misc. Civil Case No. 1411 of 2004 was based on violation of fundamental rights and freedoms under the Constitution then in place, and the damages awarded were specifically for those violations.
12. It is also to be noted that judgment herein was delivered on 7th December 2009 while judgment in Nairobi HC Misc. Civil Case No. 1411 of 2004 was delivered on 21st July 2010. So, if any judgment were to be challenged it ought to be the latter one, which was in the latter case. There is absolutely no cause to challenge the earlier judgment which was delivered in the earlier case.
13. For the above reasons I find no merit in the two applications, and the same are dismissed with costs. It is so ordered.
DATED AND SIGNED AT NAIROBI THIS 6TH DAY OF FEBRURARY 2013
H. P. G. WAWERU
JUDGE
DELIVERED AT NAIROBI THIS 8TH DAY OF FEBRUARY 2013