[2022] KEHC 2451 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISUMU

CONST. PETITION NO. E003 OF 2021

DR. JOSHUA E.A. MATIMU.......................................................................... PETITIONER

VERSUS

GALAXON KENYA LIMITED ..............................................................1ST RESPONDENT

THE COUNTY GOVERNMENT OF VIHIGA ................................... 2ND RESPONDENT

AND

ETHICS AND ANTI-CORRUPTION COMMISSION (EACC)....INTERESTED PARTY

RULING

This Ruling is on the Preliminary Objection dated 23rd March 2021, which is in the following terms;

“1. This Honourable Court lacks jurisdiction to hear this Constitutional Petition in the light of Article 165 (6) of the Constitution.

2. The Constitutional Petition is Res Judicata as the orders sought are similar to the ones sought in Kisumu Civil Suit Number 18 of 2017 and Kisumu Judicial Review No. 10 of 2019.

3. The doctrine of finality has already set in and there must be an end to litigation.

4. The Petition is misconceived, bad in law and incurably defective.

5. The Petition is an abuse of the court process and stand to embarrass this court by pitting it against the Court hearing Kisumu Judicial Review No. 10 of 2019 and Kisumu Civil Suit No. 18 of 2017. ”

1. Whereas the 1st Respondent urged this Court to hold that it lacked jurisdiction, the Petitioner has the very opposite opinion.

2. However, both parties acknowledge that the basis for the jurisdiction of the High Court is Article 165of the

Constitution.

3. As pointed out by the Petitioner;

“4. Article 165 (6) provides that the High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi – judicial function, but notover a superior court.”

4. The reliefs sought in the Petition relate to Decrees issued in KISUMU CIVIL CASE NO. 18 OF 2017, and KISUMU HIGH COURT JUDICIAL REVIEW NO. 10 OF 2019. Both decrees were issued by the High Court of Kenya.

5. By dint of the provisions of Article 162 (1)of theConstitution, the High Court; the Employment & Labour Relations Court; the Environment and Land Court; the Court of Appeal; and the Supreme Court are, collectively, called the Superior Courts.

6. It therefore follows, the pursuant to Article 165 (6), this Court does not have jurisdiction to supervise the High Court.

Res Judicata

7. It was the contention of the 1st Respondent that the 2ndRespondent herein had previously filed an application dated 13th June 2019, seeking the same orders as are being sought in this Petition. The said application was said to have been filed in GALEXON KENYA LTD Vs CENTRE FOR YOUTH LINKAGES AND EMPOWERMENT PROGRAMMES & 2 OTHERS HIGH COURT, COMMERCIAL CASE NO. 18 OF 2017.

8. Although the 1st Respondent has submitted that theapplication sought the same orders that are being sought in this Petition; and that the application had been dismissed, the 1st Respondent did not provide this Court with the requisite application and Ruling. In the circumstances, this Court was unable to verify for itself, the factual foundation upon which the 1st Respondent’s objection of res judicatawas based.

9. Secondly, the 1st Respondent failed to demonstrate that the Petitioner was either a party to the earlier case, or that the Petitioner was a pawn or a proxy of any party who was a party to the earlier proceedings.

10. Pursuant to the judgment in HENDERSON Vs HENDERSON(1843) 3 HARE 100, 67 ER 313;

“……. where a given matter becomes the subject of litigation in, and adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not, except under special circumstances, permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence or even accident, omitted part of their case.

The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgement, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at thetime.”

11. I find that the 1st Respondent failed to satisfy the Court that this case meets the threshold for being declared resjudicata.

12. The Petitioner was not a party in the earlier cases, nor has it been shown by the 1st Respondent that previously the Court had determined the issue of the alleged violation of the Constitution.

Doctrine of Finality

13. The doctrine of finality enables the Court to bring litigation to a close.

14. In many instances, when a party suffers a loss in a case which was in court, he would feel inclined to either appeal or seek review of the decision.

15. When a Court of competent jurisdiction has rendered adecision on issues in a case, the parties to that case ought not to ask the court to make another determination on the same issues.

16. Should one or another of the parties ask the court to make another determination, the Court should, as a general rule, invoke the doctrine of functus officio.

17. “Black’s Law Dictionary”, 10th Edition defines Functus Officioas follows;

“Latin – having performed his or her office.

(Of an officer or official body) without further authority or legal competence because the duties and functions of the original commission have been fully accomplished. The term is sometimes abbreviated to functus.”

18. Thus when the court had rendered a verdict on issues which had been canvassed before it, the duty or function of the said court had been accomplished.

19. The court that has already accomplished its duty, (bydelivering its Ruling or Judgment) ought to decline the invitation of any of the parties to re-open the issues.

20. If any party was dissatisfied with the decision of the Court, the said party may lodge an appeal.

21. In my considered view, the doctrine of finality comes into play once the court had rendered a final decision on the issues before it, regardless of whether or not the principle of res judicatacan be invoked. In other words, whilst the doctrine of finality and the principle of res judicataboth bar the re-opening of issues that had been adjudicated, the two are not synonymous.

Conclusion

22. Whereas the Petitioner was not a party in any of the earlier cases between, inter alia, the 1st and 2nd Respondents herein, he was seeking to re-open cases in which decisions have already been rendered.

23. None of the parties in those earlier cases had lodged anappeal to challenge the decisions in question.

24. In the circumstances, I find that the Petition was seeking a circuitous route to attack the final decisions which were made in cases that the Petitioner was not party to.

25. If this Court were to entertain the Petition; and if this Court were to be persuaded to set aside the Decrees in the 2 cases; (Kisumu Civil Case No. 18 of 2017 and Kisumu High Court Judicial Review No. 10 of 2019), I would have undertaken supervisory duties over Judges of concurrent jurisdiction.

26. As earlier pointed out, this Court lacks supervisory jurisdiction over a superior court.

27. Accordingly, the preliminary objection is upheld.

28. The Petition is therefore struck out.

29. Costs of the Petition and of the Preliminary Objection shall be paid by the Petitioner, to the 1st Respondent.

DATED, SIGNEDAND DELIVERED AT KISUMUTHIS 9TH DAY OF FEBRUARY, 2022

FRED A. OCHIENG

JUDGE