[2023] KEHC 25989 (KLR)

Heshimart Enterprises Ltd v Kenya Women Micro Finance Bank Ltd & another (Civil Case E007 of 2023) [2023] KEHC 25989 (KLR) (1 December 2023) (Ruling)

Neutral citation: [2023] KEHC 25989 (KLR)

Republic of Kenya

In the High Court at Eldoret

Civil Case E007 of 2023

JRA Wananda, J

December 1, 2023

Between

Heshimart Enterprises Ltd

Plaintiff

and

Kenya Women Micro Finance Bank Ltd

1st Defendant

Garam Investments Auctioneers

2nd Defendant

Ruling

1. On 11/05/2023, the Plaintiff, through Messrs Warigi & Co. Advocates, filed this suit seeking to restrain the 1st Defendant, a financier, from exercising its statutory power of sale, through the 2nd Defendant, over the property known as Eldoret Municipality/Block 6/251. The Plaintiff therefore sought an injunction stopping the Defendants from selling the said property. Together with the Plaint, the Plaintiff also filed the Application of the same date seeking interim orders.

2. On 22/05/2023, the 1st Defendant through Messrs Kalya & Co. Advocates entered appearance and filed the Notice of Motion dated 22/05/2023 seeking the following orders:a.That this honourable court be pleased to strike out the plaintiff’s/respondent’s plaint dated May 8, 2023 and Application dated May 8, 2023 as they offend section 7 of the Civil Procedure Act, 2010. b.That the Plaintiff/Respondent to bear costs of this Application.

3. The Application is brought under section 1A, 1B, 3A and 7 of the Civil Procedure Act and “all other enabling provisions of the law”. It is premised on the grounds set out thereon and is supported by the Affidavit sworn by one Susan Kiama Michere.

4. In her Affidavit, the said Susan Kiama Michere deponed that she is the Debt Recovery Manager of the 1st defendant’s North Rift Region, that the Plaintiff had already instituted a claim of permanent injunction over the suit property, Eldoret Municipality/Block 6/251 in Eldoret HCCC No. 49 of 2018, against the 1st Defendant, the claim failed and the suit was dismissed on 16/03/2021, dissatisfied with the Judgment the Plaintiff filed a Notice of Appeal and an Application seeking injunction at the Court of Appeal in Civil Appeal No. E172 of 2021, the Application was also dismissed on 8/07/2022, the present matter is identical to the earlier one, the parties are the same, the claim/title is the same, the Court has concurrent jurisdiction and finality of the previous decision, the present suit is only meant to frustrate the 1st Defendant’s efforts to exercise its statutory power of sale, and the suit is an attempt for the Court to review its decision in the earlier case and that the matter is {{term{refersTo |title Already heard and determined on merits by a competent court and therefore may not be pursued further by the same parties;

a cause of action may not be relitigated once it has been judged on the merits; finality.} res jud}}{{term{refersTo |title Already heard and determined on merits by a competent court and therefore may not be pursued further by the same parties;a cause of action may not be relitigated once it has been judged on the merits; finality.} icata}}. Copies of the earlier Court decisions are exhibited to the Affidavit. 5. Despite being granted the opportunity, the Plaintiff never filed any response.

Hearing of the Application 6. It was then directed that the Application be canvassed by way of written Submissions. However, again, only the Defendants filed such Submissions, which they did on 19/07/2023. The Plaintiff did not file any Submissions.

Defendant’s Submissions 7. Counsel for the Defendants recapped the matters deponed in the Supporting Affidavit, submitted that the suit is Res Judicata, and cited section 7 of the Civil Procedure Act and the case of Invesco Assurance Company Limited & 2others v Auctioneers Licensing Board &another; Kinyanjui Njuguna & Company Advocates &another (Interested Parties) [2020] eKLR.

8. She also cited the case of Kennedy Mokua Ongiri v John Nyasende Mosioma & Florence Nyamoita Nyasande [2002 eKLR which, she submitted, quoted the case of Uhuru Highway Development Ltd v Central Bank of Kenya & 2 others [1996] eKLR.

Analysis and Determination 9. The issue herein is whether this suit is res judicata and therefore whether it should be struck out

10. The law on res judicata is found in section 7 of the Civil Procedure Act which provides that:

“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court”

11. On its part, the Black’s Law Dictionary 10th Edition defines “res judicata” in the following matters.“An issue that has been definitely settled by judicial decision … the three essentials are (1) an earlier decision on the issue, (2) a final Judgment on the merits and (3) the involvement of same parties, or parties in privity with the original parties…”

12. In determining whether a matter or suit is Res Judicata, the Court of Appeal in the case of The Independent Electoral and Boundaries Commission v Maina Kiai & 5 others, [2017] eKLR, pronounced itself as follows:“[F] or the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must be satisfied, as they are rendered not in disjunctive but conjunctive terms;a)The suit or issue was directly and substantially in issue in the former suit.b)That former suit was between the same parties or parties under whom they or any of them claim.c)Those parties were litigating under the same title.d)The issue was heard and finally determined in the former suit.e)The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.

13. The Court went further to state as follows:“The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as a pragmatic and commonsensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and fora, to obtain at last, outcomes favourable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute or calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice.”

14. From the foregoing, it is clear that for a matter to be termed Res Judicata, the matters in issue must be similar to those which were previously in dispute between the same parties and the same having been determined on merits by a Court of competent jurisdiction. The doctrine of Res judicata exists to protect parties from being endlessly dragged into litigation over the same issue or subject matter that has already been conclusively determined by another Court.

15. Upon perusal of the pleadings herein and comparing them with the pleadings and Court decisions exhibited by the Defendants in their Supporting Affidavit, I am satisfied and agree with the Defendant’s Counsel that the Plaintiff had earlier instituted a similar suit, namely, Eldoret HCCC No. 49 of 2018, against the same Defendant as herein seeking the same claim for permanent injunction over the same property as herein, namely, Eldoret Municipality/Block 6/251.

16. The exhibits establish that the said former suit was dismissed vide the Judgment delivered by Nyakundi J on 16/03/2021. Dissatisfied with the decision, the Plaintiff filed a Notice of Appeal and also filed an Application, namely, Court of Appeal Civil Application No. E172 of 2021 Kisumu seeking injunction pending Appeal. That Application was also dismissed on 8/07/2022.

17. Having established the above facts and applying the test set out in the case of The Independent Electoral and Boundaries Commission v Maina Kiai (supra), I find that the matters or issues raised in the present suit were the same that were directly and substantially in issue in the former suit, the former suit was between the same parties as herein, those parties were litigating under the same title as herein, the issues were heard and finally determined in the former suit and the Court that formerly heard and determined the issues or the former suit was a Court of competent jurisdiction.18. In light of the foregoing, I find that the present suit is undeniably Res Judicata, thus incompetent and the same cannot be sustained. I am not therefore surprised that the Defendant’s Counsel, when faced with the present Application, never even bothered to file any response. He must have been aware that the suit cannot be saved.

Final orders 19. In the premises, the Defendants’ Notice of Motion dated 22/05/2022 and filed on 23/05/2022 succeeds in the following terms:i.The plaint dated 8/05/2023 together with the plaintiff’s notice of motion of the same date, are hereby struck out as they offend the doctrine of res judicata as enshrined in section 7 of the Civil Procedure Act, 2010. ii.Consequently, this entire suit is struck out.iii.The plaintiff shall bear the costs of this application and of the entire suit in general.

DELIVERED, DATED AND SIGNED AT ELDORET THIS 1STDAY OF DECEMBER 2023…………………..WANANDA J. R. ANUROJUDGE