[2023] KEHC 27347 (KLR)

Ideal Locations Limited v Nakumatt Holdings Limited (Under Administration & 3 others (Civil Suit 69 of 2018) [2023] KEHC 27347 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 27347 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Suit 69 of 2018

DKN Magare, J

December 14, 2023

Between

Ideal Locations Limited

Plaintiff

and

Nakumatt Holdings Limited (Under Administration)

1st Defendant

Peter Obondo Kahi

2nd Defendant

Pkf Consulting Limited

3rd Defendant

Atul Shah

4th Defendant

Ruling

1. When people had all the time to do all the things at all times, they were involved in duelling. A loser will contest the Result and then a re-match is organised with time, the art of decision making was improved through Russian roulette. In the game there is only one chance to come out alive, with one bullet in the chamber. The game has now been changed by banditry, where people come with several guns with several bullets. We are going back to duelling.

2. A Notice of Motion dated 16/1/2020 was filed by the 1st Defendant. There is another Application dated 17/1/2023. For the last 3 years, the parties have been dancing around the two Applications. The suit has been in a state of animated limbo, since the same could not proceed without disposing the two applications. The application dated 16/1/2022, is supported by the affidavit of Peter Obowo Kahi and seeks the following orders:-a.The Honourable Court be pleased to strike out the Plaint and dismiss the Plaintiff’s suit as against the 1st Defendant.b.Cost of the Application be provided for.c.The same is expressed to be brought under Sections 1,430,558, 557,560 and 561 of the Insolvency Act and Several Articles of the Constitution.

3. The claim, by its nature is a claim for defamation which is alleged to have occurred on 11/3/2018. The 1st Defendant maintains that the High Court in Insolvency Cause No. 10 of 2017 had issued orders against creditors.

4. They state that there is no leave sought against the administrator. The Supporting Affidavit is a study on how not to write an affidavit. It does not communicate what ought to be communicated.

5. The said Application was opposed by the Affidavit of Anish Doshi, a director of the plaintiff. Her first line of defence is that the same is res judicata. Since a similar preliminary objection was raised on 7/9/2018. The same was dismissed on 30/4/2019 by Justice P.J.O. Otieno.

6. At the hearing, ground (b) of the Preliminary Objection dated 7/9/2018 was abandoned. The effect of abandonment is that it is a concession that the said objection has merit. It is the same as if the Court makes a decision and does not mention some prayers. Those prayers are deemed to have been refused.

7. Section 7 and in particular explanation 5 of the Civil Procedure Act provides as doth:“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.Explanation. (5)—Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused.

8. I cannot countenance a scenario where a party postpones part of a Preliminary Objection or Application to hear on another date. In their submission the plaintiff states that the issue had been dealt with and declined by the good Judge.

9. The plaintiff maintains that the application in is res judicata.

10. They rely on the case of Satya Bhama Gandhi v Director of Public Prosecutions & 3 others [2018] eKLR in which the Court dismissed a Judicial Review Application having found it to be res judicata and that the same was consequently abuse of the court process.

11. I was asked to dismiss the Application. They also pray for costs of the Application.

Analysis 12. The Plaintiff filed suit on 29/8/2018 claiming various prayers against 4 Defendants. The claim is essentially a defamation matter. However, it has ballooned into a huge file.

13. The Court made a ruling on 13/5/2022 reinstating an Application dated 16/1/2020 and submission dated 14/12/2014. There also appears to have been a Preliminary Objection dated 7/9/2019. By an affidavit dated 24/4/2020 Anish Doshi deponed in response to the Application dated 18/1/2020. Her case was that the Application dated 16/1/2020 is res judicata. The said Application sought for the orders: -a.The Honourable Court be pleased (who gets pleased to strike out a suit?) to strikeout the Plaint and dismiss the Plaintiff’s suit as against the 1st Defendant.b.It is grounded upon orders issued on 29/8/2018. The Court issued certain orders. The orders are argumentative, verbose and propitious and as such obfuscate the real issues in controversy.

14. By an application dated 15/12/2022 this Court Mwangi J, reinstated the Application dated 16/1/2020 having been dismissed on 15/1/2020. The reading of the said Application is unseemly since, the Applicant has underlined every open space. The need for underlining thus serves no purpose.

15. The Applicant filed submission on the Application dated 16/02/2020 on 15/12/2022. The submission are a resultant of the conceptualisation of the impugned Application. It should be recalled that the Applicant had taken out a Preliminary Objection which Justice P.J.O. Otieno dismissed in the following terms: - “The upshot is that the preliminary objection was improperly taken.

16. The Ruling by Justice P.J.O. Otieno given on 30/4/2019.

17. The Plaintiff filed submissions dated 25/7/2023 to the Application dated 16/1/2023.

18. They reiterated that the Application dated 16/1/2023 is meant to delay the hearing of the matter. They filed a Replying Affidavit and grounds of opposition.

19. They state that the Application as regards Section 561 of the Insolvency Act and the same cannot be supplied but is dismissed with costs. Having so dismissed the objection, then it follows that the suit must be considered on the merits.

20. The decision of the Court was based on a binding precedent in KCFC Ltd. = v s= Richard A. Onditi (2021) eKLR. The Court also found as a fact that Order 4 Rule (2) of the Civil Procedure Rule was duly complied with. All the Sections assailed herein were also attacked in the preliminary objection.

21. The matter was left for my decision.

Analysis 22. Having per used the record, I note that the Court, P.J.O. Otieno foreclosed the issues raised by dint of Section 7 of the Civil Procedure Act. I cannot re-look at the same issues. In the circumstances it is waste of Judicial time to re-clothe a matter that has been finally dealt with through the new King’s language and present it as new. I refuse.

23. Consequently, the Application dated 16/1/2020 is dismissed in limine with costs of Kshs. 30,000 for being res judiacta. The Court will issue directions forthwith on hearing of the case herein forthwith.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 14TH DAY OF DECEMBER, 2023. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:Miss. Khadija for the PlaintiffNo appearance for 1st DefendantMr. Kimani for 2- 4th DefendantCourt Assistant - Brian