[2022] KEHC 16195 (KLR)

Irabonga v Maries Stopes Kenya Limited (Civil Case E092, E039, E090, E140, E082, E089, E102, E088, E086, E083, E084, E085, E091 & E087 of 2020 (Consolidated)) [2022] KEHC 16195 (KLR) (Civ) (8 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16195 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case E092, E039, E090, E140, E082, E089, E102, E088, E086, E083, E084, E085, E091 & E087 of 2020 (Consolidated)

JN Mulwa, J

December 8, 2022

Between

Margaret Munyuli Irabonga

Plaintiff

and

Maries Stopes Kenya Limited

Defendant

Ruling

1. This Ruling is in respect to the Defendant’s Notice of Preliminary Objection dated June 29, 2021. The Defendant seeks that the Plaintiff’s suit be dismissed or struck out with costs on the following grounds:1. That the Plaintiff’s suit is sub judice since there is already another matter pending in ELRC Cause No 457 of 2020 – Margaret Munyuli Irabonga v Marie Stopes Kenya Limited and therefore offends the mandatory provisions of section 6 of the Civil Procedure Act.2. That in any event, the Honourable Court lacks the Jurisdiction to grant and/or to issue the orders sought under prayer (1) and (2) of the Suit.

2. The Preliminary Objection was canvassed by way of written submissions. This court has carefully considered the parties’ respective arguments in support and in opposition of the preliminary objection.

3. The existence of the two suits is not disputed. ELRC Cause No 457 of 2022 - Margaret Munyuli Irabonga v Marie Stopes Kenya Ltd was filed by the Plaintiff herein against the Defendant herein in the Employment and Labour Relations Court in Nairobi sometime in August. In the Memorandum of Claim dated August 27, 2022, the Plaintiff herein seeks the following orders from the ELRC Court:a.A declaration that the Respondent’s purported termination on June 30, 2020 of her contract of employment is unlawful, null and void.b.A declaration that the Respondent has destroyed the Claimant's career through the purported letter of termination dated June 29, 2020. c.A declaration that the Respondent has contravened the Claimant’s rights under Articles 29, 37, 40 and 41 of the Constitution.d.An order that the Respondent pays the Claimant's salary for June 2020. e.An order that the Respondent pays the Claimant Kshs 327,009. 90 multiplied by 12;f.An order that the Respondent pays the Claimant an amount in lieu of untaken leave for a period of 20 days amounting to Kshs 218,006. 60. g.An order that the Respondent pays the Claimant amount arising from pension.h.General damages;i.The costs of this suit.”

4. The Plaintiff filed the present suit later on in October vide a Plaint dated October 6, 2022 in which she prays for judgment against the Defendant for:a.A declaration that the Defendant has defamed the Plaintiff through the purported letter of termination dated June 29, 2020. b.A declaration that the said defamatory words contravened the Plaintiff's rights to dignity under Article 28 of the Constitution, her right under Article 33 (3) of the Constitution to ensure that in exercising the right to the freedom of expression, the Defendant was expected to respect the rights and reputations of the Plaintiff, the Plaintiff's right to correct or deletion of untrue or misleading information that affects her under Article 35 (1) of the Constitution.c.A permanent injunction restraining the Defendant, whether by themselves, their servants or agents or otherwise, from further publishing or causing to be published, the said words similarly defamatory of the Plaintiff.d.Damages.e.Exemplary damages.f.Costs of the suit.g.Interest.

5. According to the Defendant, the alleged defamatory material contained the letter of termination dated June 29, 2020 which is at the center of both suits cannot be de-compartmentalized to enable portions thereof to support separate claims especially when the ELRC Court also has jurisdiction to grant the orders sought in the present suit. It submitted that there would be no possible way of litigating the current suit without delving into the nitty-gritties of the matters pleaded in the Employment Court. To do so, in its view, would be encouraging a multiplicity of suits.

6. The Plaintiff on the other hand avers that the preliminary objection is not properly raised as determining whether the matter is sub-judice would require the court to delve into disputed facts contrary to the well settled law in Mukhisa Biscuit Manufacturers Ltd vs West End Distributors Ltd [1969] E A 696. Without prejudice to that, the Plaintiff submits that the claim in ELRC Cause No. 457 of 2022 is based on unlawful termination of employment by the Defendant herein which is entirely different from the defamation claim in the present suit. In her view therefore, the issue of sub judice does not arise.

7. To begin with, this court does not agree with the Plaintiff’s contention that the preliminary objection was improperly raised because in its view, sub judice issue is a matter of law which if argued as a preliminary point may dispose of a suit.

8. Section 6 of the Civil Procedure Act provides as follows regarding the doctrine of sub judice:“No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.”

9. The Supreme Court of Kenya in Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] eKLR pronounced itself on the subject of sub judice as follows: -“(67)The term ‘sub-judice’ is defined in Black’s Law Dictionary 9th Edition as: “Before the Court or Judge for determination.” The purpose of the sub-judice rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the Court process and diminish the chances of courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter. This means that when two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. A party that seeks to invoke the doctrine of res sub-judice must therefore establish that; there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives.”

10. In Republic v Paul Kihara Kariuki, Attorney General & 2 others Ex parte Law Society of Kenya [2020] eKLR, Mativo J. stated as follows: -“…for the doctrine of sub judice to apply the following principles ought to be present: - (a) There must exist two or more suits filed consecutively; (b) The matter in issue in the suits or proceedings must be directly and substantially the same, the parties in the suits or proceedings must be the same or must be parties under whom they or any of them claim and they must be litigating under the same title,”

11. In Thiba Min Hydro Co Ltd v Josphat Karu Ndwiga [2013] eKLR, Justice Olao stated that it is not the form in which the suit is framed that determines whether it is sub-judice, rather it is the substance of the suit and that there can be no justification in having the two cases being heard parallel to each other.

12. From the prayers reproduced hereinabove, there is no dispute that the Plaintiff’s suit before the ELRC is based on allegations of unfair termination pursuant to the letter of termination dated June 29, 2020. It is also evident that in the present suit, the Plaintiff alleges to have been defamed by the contents of the same letter of termination dated June 29, 2020. Since the two cases emanate from the same set of facts and circumstances, it would be impossible to determine the defamation suit without delving into issues that are before the ELRC Court. Further since the parties in two suits are same, the witnesses in this suit are probably the same ones that will be testifying in the ELRC case. In the court’s view, this will amount to duplication of effort and in any event, it is highly likely that a finding in the ELRC suit will greatly impact the instant suit. There is therefore no justification in having the two cases heard parallel to each other particularly when the ELRC Court is clothed with jurisdiction to hear and determine defamation suits by virtue of Article 162(3) of the Constitution and Section 12 of the Employment and Labour Relations Court Act, 2011.

13. In the premises, the court finds that doctrine of sub judice has been appropriately invoked by the Defendant although the suit will not be dismissed on that basis. Having found so, there is no need to delve into whether or not the second ground of the Defendant’s preliminary objection is merited.

14. Consequently, the Defendant’s Notice of Preliminary Objection dated June 29, 2021 succeeds.a.The court orders that the instant suit be transferred to the Employment and Labour Relations Court in Nairobi for consolidation with ELRC Cause No 457 of 2020 – Margaret Munyuli Irabonga v Marie Stopes Kenya Limited.b.There shall however be no order as to costs.c.This Order shall apply to all the thirteen consolidated suits.Orders accordingly.

DELIVERED, DATED AND SIGNED THIS 8TH DAY OF DECEMBER, 2022. J.N. MULWAJUDGE