[2017] KEHC 9629 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO. 219 OF 2015

In the matter of Articles 2 (1) & (5), 3 (1), 20, 22 (1) & (2), 23, 258, and 260 of the Constitution of Kenya 2010 for Enforcement of Fundamental Rights and Freedoms

and

In the matter of alleged contravention of Rights and Fundamental Freedoms under Article 27, 29 (f), 43 (1), 50 and 53 (1) (b) of the Constitution of Kenya 2010

and

In the matter of Section 4 (2) and Section 7 of the Children's Act 2001

and

In the matter of Sections 4 (a) (e) (p), 28 and 35 of the Basic Education Act 2013 & Regulations 30, 38, 39 & 40 of the Basic Education Regulations 2015

and

In the matter of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013

BETWEEN

J.N. (J N)A Child suing through her

father and next friend N. M. (N M)...........................................................1stPetitioner

M.W. (M W) A Child suing through her

father and next friend N. K.(N K).........................................................2nd Petitioner

M.M. (M M)A Child suing through her

father and next friendM. M. (M M).......................................................3rd Petitioner

M. N. (M N)A Child suing through her

father and next friend F. K. (F K)............................................................4thPetitioner

P. N. (P N)A Child suing through her

father and next friend H. O.(H O).........................................................5th Petitioner

D.M.K.(A minor suing throughJ Kthe Father....................................6thPetitioner

versus

The Board of Management, St. G School, Nairobi......................1st Respondent

The Kenya National Examinations Council.................................2nd Respondent

RULING

Introduction

1. On 19TH June 2015, the court ordered that Petition numbers 219 of 2015 and 244 of 2015 be consolidated; that Pet. No. 219 of 2015 remains the parent file; that the Petitioner in Petition Number 244of 2015 became the sixth Respondent in the consolidated Petition while the second Respondent in Petition No. 244 of 2015, that is The Kenya National Examinations Council became the second Respondent. However, on 30th June 2015, a consent order was recorded discharging the Kenya National Examinations Council from these proceedings and that the Petition be amended.

2. Despite the order on consolidation and that the records do in Petition 219 of 2015, and that the Petitioner in Pet. No. 244 of 2015 becomes the sixth Petitioner (which to me properly construed would mean that only Petition 219 of 2015 was to be amended to reflect the Petitioner in Petition number 244 of 2015 as the sixth Petitioner), and remove the Kenya National Examination council which had been discharged from the proceedings, counsels in both Petitions amended the two Petitions which was not necessary.

3. More disturbing is the fact the amended Petitions were file over one year later, which to me in an unreasonable delay. In the amended in number 244 of 2015, a one Lucy Rukanga, The Principle [particulars withheld] School is named as the third Respondent while the Attorney General was named as the fourth Respondent. The only amendment in Petition 219 of 2015 is the addition of the names of the next of friends.

Notice of Preliminary objection

4. On 15th May 2017, Mr. Gaturu, counsel for the third Respondent filed a notice of a preliminary objection the crux of which is:-

a) that Lucy Rukanga , the principal of the school ought not be sued in her personal capacity;

b) that this Petition was concluded on 30th June 2015, hence further proceedings are res judicata;

c) that the Petitioners are no-longer minors, hence their next of friends have nolocus standi.

5. Mr. Marwa for the Hon. attorney General supported the objection arguing that by the time the amended Petitions were filed, the Petitioners had attained the age of majority, hence suing through their next of friends is fatal.

6. Counsels for the Petitioners in both Petitions opposed the preliminary objection on grounds that it does not meet the threshold for a preliminary objection, that the consent orders made on 30th June 2015 only disposed the notice of motion filed together with the Petition and not the Petition, hence res judicata does not apply. On the question on age, counsels invoked Articles 22 and 258 of the constitution.

Definition of a preliminary objection

7. I find it necessary to define what constitutes a preliminary objection on a point of law. A preliminary objection must first, raise a point of law based on ascertained facts and not on evidence. Secondly, if the objection is sustained, that should dispose of the matter. A preliminary objection is in the nature of a legal objection not based on the merits or facts of the case, but must be on pure points of law.

8. It may be noted that preliminary objections are narrow in scope and cannot raise substantive issues raised in the pleadings that may have to be determined by the court after perusal of evidence. Understanding the nature and scope of preliminary objections is very important for practicing lawyers. Knowing how to raise a properly formulated preliminary objection, and when to raise it, can save a lot of time and costs.

9. Discussing what constitutes a preliminary objection, Law JA in Mukisa Biscuit Manufacturers Ltd vs. Westend Distributors Ltd[1][1] said:-

"...so far as I am aware, a preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary objection may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit, to refer the dispute to arbitration."

10. In the words of Sir Charles Newbold P at page 701, B:-

"...A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and, on occasion, confuse the issues, and this improper practice should stop.”(Emphasis added)

11. Useful guidance can be obtained from the decision in Omondi vs. National Bank of Kenya Ltd & Others[2][2] where it was held that:-

“The objection as to the legal competence of the Plaintiffs to sue……and the plea of res judicata are pure points of law which if determined in the favour of the Respondents would conclude the litigation and they were accordingly well taken as preliminary objections…In determining both points the Court is perfectly at liberty to look at the pleadings and other relevant matter in its records and it is not necessary to file affidavit evidence on those matters…What is forbidden is for counsel to take, and the Court to purport to determine, a point of preliminary objection on contested facts…"

12. Also relevant is the decision by Ojwang, J (as he then was) where he expressed himself as follows:-[3][3]

“A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration…. A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law, which is argued on the assumption that all facts pleaded by the opposite side are correct. It cannot be raised if any fact is to be ascertained or if what is sought is the exercise of judicial discretion….The principle is abundantly clear. A “preliminary objection” correctly understood, is now well defined as, and declared to be, a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion, which claims to be a preliminary objection, yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed. Where a court needs to investigate facts, a matter cannot be raised as a preliminary point…Anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence.….. ….”(Emphasis added)

13. Thus, a preliminary objection may only be raised on a “pure question of law.” To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.

14. In law, a question of law, also known as a point of law, is a question that must be answered by applying relevant legal principles to interpretation of the law.[4][4] Such a question is distinct from a question of fact, which must be answered by reference to facts and evidence as well as inferences arising from those facts.

15. In law, a question of fact, also known as a point of fact, is a question that must be answered by reference to facts and evidence as well as inferences arising from those facts. Such a question is distinct from a question of law, which must be answered by applying relevant legal principles. The answer to a question of fact (a "finding of fact") usually depends on particular circumstances or factual situations.[5][5]

Whether the grounds raised in this objection are pure points of law

16. The first ground as I understood it is"that Lucy Rukanga cannot be sued in her personal capacity."Put differently, does the Petition disclose a cause of action againstLucy Rukanga,the Principal of the School in her personal capacity for a decision made by the Board of Management. This is a point of law which does not warrant evidence.

17. Section 1 of the fourth Schedule of the Basic Education Act[6][6] (pursuant to Section 56of the Act[7][7]) provides that "The Board of Management shall be a body corporate with perpetual succession and a common seal, and shall in their corporate names, be capable of—

a. suing and being sued;

b. taking, purchasing or otherwise acquiring, holding, charging or disposing of movable and immovable property;

c. borrowing, lending and granting money;

d. entering into contracts; and

e. doingpr performing all other or things for the proper performance of its functions under this Act which may lawfully be dine or performed by body corporate.

18. My understanding of the law and the above provision is that the Board of Management is a legal entity, capable of suing and being sued and the School's principal cannot be sued in her name or personal capacity for decisions made by the Board. There is nothing to show that she made the impugned decision her personal capacity or acted outside her mandate to warrant personal liability.

19. In any event, a careful scrutiny of the amended Petition reveals that no allegations have been made against her in her personal capacity. Put bluntly, the petition does not disclose a case against her in her personal capacity and it would be improper, unfair and unjust to drug her through these proceedings when the decision being challenged was arrived at by a legal entity.

Whether this suit is res judicata

20. Mr. Gaturu submitted that this Petition was concluded on 30th June 2015. The record shows that on 30th June 2015, a consent order was recorded couched in the following words:-

"By consent:-

i. Thesecond Respondent having effected the change of examination centres for the Petitioners is released from further participation in these proceedings.

ii. Petitionto be amended and directions to be taken on 18. 8. 2015.

iii. Noticeto issue.

21. My reading of the above consent order is that it only released the second Petitioner who was the Kenya National Examinations Council from these proceedings and that the Petition was to be amended and a date was fixed for further directions.

22. Its trite law that if any judicial tribunal in the exercise of its jurisdiction delivers a judgment or a ruling which is in its nature final and conclusive, the judgment or ruling is res judicata. If in any subsequent proceedings (unless they be of an appellate nature) in the same or any other judicial tribunal, any fact or right which was determined by the earlier judgment is called in question, the defence of res judicata can be raised. This means in effect that the judgment can be pleaded by way of estoppel in the subsequent case.

23. As Somervell L.J. stated [8][8] res judicata covers issues or facts which are so clearly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them.

24. It is quite clear that a litigant will not be allowed to litigate a matter all over again once a final determination has been made. Generally, a party will be estopped from raising issues that have been finally determined in previous litigation, even if the cause of action and relief are different. The purpose is obviously to prevent the repetition of lawsuit between the same parties, the harassment of a defendant by a multiplicity of actions and the possibility of conflicting decisions by the different courts on the same issue.[9][9]

25. The requirements for res judicata are that the same cause of action, for the same relief and involving the same parties, was determined by a court previously. In assessing whether the matter raises the same cause of action, the question is whether the previous judgments involved the ‘determination of questions that are necessary for the determination of the present case and substantially determine the outcome of this case.'

26. It is evidently clear that the consent order did not determine the entire Petition. I am not persuaded that the plea of res judicata raised in this case can succeed. The consent did not resolve the entire Petition.

The Petitioners are no-longer minors, can they sue through their next of friends?

27. The court was asked to strike the petition on grounds that the petitioners have since attained the age of majority, yet the Petition still shows that they are suing through their next of friends.

28. Striking out a court proceeding is a drastic and draconian step that amounts to shutting out the door for a litigant and in my view it ought to be exercised carefully, with a lot of caution and ought to be used as a tool of last resort and in extremely deserving cases where the case in question is hopelessly bad, unsustainable and that the defect in question must be incurable. Madan, JA, (as he then was) put it succinctly in DT Dobie Co Ltd vs. Muchina[10][10] when he stated that:-

“No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is so week as to be beyond redemption and 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.”(Emphasis added)

29. Striking out is a very serious matter, it is draconian and it should be resorted to as an avenue when the cause filed is hopeless or it is meant or intended to abuse the process of the court.[11][11] Also relevant is the dicta of Fletcher Moulton L. J. in Dyson Vs. Attorney General[12][12]

“.........and the courts have properly considered that this power of arresting an action and deciding it without trial is one to be very sparingly used and rarely, if ever, excepting in causes were the action is an abuse of legal procedure… To my mind, it is evident that our judicial system would never permit a plaintiff to be “driven from the judgment seat” in this way without any court having considered his right to be heard, excepting in cases where the cause of action was obviously and almost incontestably bad”.(Emphasis added)

30. Our judicial system would never permit a party to be “driven from the judgment seat without any court having considered his right to be heard, excepting in cases where the cause of action is obviously and almost incontestably bad. No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is so week as to be beyond redemption and 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.

31. The right to a hearing has always been a well-protected right in our constitution and is also the cornerstone of the rule of law. This is why even if the courts have inherent jurisdiction to dismiss suits, this should be done in circumstances that protect the integrity of the court process from abuse that would amount to injustice and at the end of the day there should be proportionality.[13][13]

32. Lord Cairns in Roger Vs Comptoir D' Escompts De Paris stated as follows:-

"One of the first and highest duties of all, Courts is to take care that the act of the court does no injury to any of the suitors and when the expression 'Act of the court' is used it does not mean merely the act of the primary court, or of any intermediate court of appeal, but the act of the court as a whole from the lowest court which entertains jurisdiction over the matters up to the highest court which finally disposes of the case."

33. The fundamental duty of the court is to do justice between the parties. It is, in turn, fundamental to that duty that parties should each be allowed a proper opportunity to put their cases upon the merits of the matter.The process of the judicial system requires that all parties before the court should be given an opportunity to present their cases before a decision is given.[14][14]

34. It is not disputed that the Petitioners are no-longer minors. To me, the Petitioners having attained the age of capacity can sue on their behalf. Guidance can be obtained from Order 32 Rule 12 of the Civil Procedure Rules, 2010 which reads that (1) 'a minor Plaintiff or a minor not a party to a suit on whose behalf an application is pending shall, on attaining majority, elect whether he will proceed with the suit or application." (2) where he elects to proceed with the suit or application he shall apply for a order discharging the next friend and for leave to proceed in his own name. Sub- Rule (3) provides that the title of the suit or application shall be corrected."

35. In my view, considering that the minors have since attained the age of majority, it is improper for the amended Petitions to continue stating they are suing through their next of friends.

36. Counsel for the Petitioners submitted that the constitution allows a party to institute proceedings on behalf of another person. I agree with this submission, but in my view the petition should clearly state so, that is, it should be clearly averred that the Petitioners bring the proceedings on behalf of another person or persons. Both amended Petitions do contain such an averment.

37. However, I find and hold that such an omission is not fatal. It can be cured by way of amendment. On this ground, I decline to strike out the amended Petitions.

Determination

38. Applying the principles laid down in the law and the above authorities, the conclusion becomes irresistible that the preliminary objection raised is this case partly succeeds and partly fails. Consequently, I order that:-

a. Thatthe suit against Lucy Rukanga be and is hereby struck off with no orders as to costs.

b. Thatobjection based on res judicata fails.

c. Thatfailure to plead in the amended Petitions either (i) the Petitioners having attained the age of majority now sue on their own behalf or (ii) the omission to plead expressly that they bring these proceedings on behalf of others under article 258 is not fatal on grounds that such a omission can be cured by way of an amendment.

d. No orders as to cost.

Orders accordingly.

Signed, Delivered, Dated at Nairobi this13THday ofNovember2017

John M. Mativo

Judge

[1][1] {1969} E.A 696 AT PAGE 700

[2][2] {2001} KLR 579; [2001] 1 EA 177

[3][3] Oraro vs. Mbaja [2005] 1 KLR 141

[4][4] Proffatt, John (1877). A Treatise on Trial by Jury, Including Questions of Law and Fact (1986 reprint ed.). Buffalo, NY: William S. Hein & Co. ISBN 9780899417073.

[5][5] "Question of fact". Legal Information Institute. Cornell University Law School.

[6][6] Act No. 14 of 2013

[7][7] Ibid

[8][8] In Greenhalgh v Mallard (1) (1947) 2 All ER 257

[9][9] Caeserstone Sdot-Yam Ltd v World of Marble and Granite 2000 CC and others 2013 (6) SA 499 (SCA) paras 20-21.

[10][10] [1982] KLR 1 at page 9:

[11][11] Dickson Karaba Vs. John Ngata Kariuki & Another {2010} e KLR

[12][12] {1911} KB 418

[13][13] Richard Nchapai Leiyangu vs IEBC & 2 others

[14][14] Agip Kenya Ltd vs Highlands Tyres Ltd {2001} KLR 630