[2023] KEELRC 2864 (KLR)

Kiogora v Imetha Water & Sanitation Co Ltd & another (Miscellaneous Application E009 of 2022) [2023] KEELRC 2864 (KLR) (10 November 2023) (Ruling)

Neutral citation: [2023] KEELRC 2864 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Meru

Miscellaneous Application E009 of 2022

ON Makau, J

November 10, 2023

Between

Stanley Kiogora

Claimant

and

Imetha Water & Sanitation Co Ltd

Respondent

and

Trident Insurance Co Ltd

Intended Respondent

Ruling

1. This ruling relates to the respondent’s Notice of motion dated 11th August 2023 brought under section 1A,1B and 3A of the Civil Procedure Act, order 51 rule 1, and order 22 rule 25 of the Civil Procedure Rules. The applicant is seeking the following orders:-a.That this honourable court be pleased to stay the judgment/decree herein pending the hearing and determination of Meru ELRC No E10 of 2023 Imetha water & Sanitation company Ltd v Trident insurance Company Ltd & Stanley Kiogorab.That in the alternative the applicant be allowed to liquidate the decree by depositing Kes 100,000 and subsequently in monthly instalments of Kes 50,000 until payment in full.c.Costs of the application be in the cause.

2. The application is supported by the affidavit sworn on the even date by applicant’s CEO Mr. Patrick Mugendi which basically alleges that the applicant is faced with financial stress and therefore cannot afford to settle the decree at once. The claimant opposed the application by filing Grounds of opposition and a notice of preliminary objection dated September 18, 2023. Basically, the claimant contends that the application is res judicata, incompetent, fatally defective, vexatious, frivolous and an abuse of the court process.

Submissions 3. The application was argued orally on September 28, 2028. Mr. Kiogora Advocate argued the application for the applicant. He admitted that the applicant had previously filed an application for stay and the court determined it by directing the applicant to deposit the whole decretal sum in court pending hearing of the suit against the insurance company. However, he submitted that the applicant was unable to deposit the decretal sum as directed by the court due to financial constraints. He referred to the Report of the auditor general to fortify his submissions.

4. He further submitted that the execution has commenced and referred to the execution warrants annexed to the supporting affidavit. He cited the case of Alloise Ochieng Dege v Explico Insurance co. Ltd & another [2022] eKLR andMuthui v Directline Co. Ltd & another [2022] eKLR where the court stayed execution pending determination of a declaratory suit.

5. Mr. Muriithi Advocate opposed the application on behalf of the claimant and argued the preliminary objection. He submitted that the instant application is res judicata and it offends section 7 of the Civil Procedure Act. He contended that the issue of stay of execution was heard and determined by this court by a ruling which directed the applicant to deposit the decretal sum in court pending the determination of the declaratory suit. Further the court directed that the decretal sum be deposited at once and therefore the issue of payment by installment is also res judicata.

6. He further submitted that the applicant has been making huge income of over Kes 50,000,000 per year and as such for the six years the claim has been pending, the company has made over Kes 300,000,000. He urged the court to dismiss the application and allow the preliminary objection because the claimant is sickly and needs the compensation money which, he has been waiting for six years.

7. In a brief rejoinder, Mr. kiogara clarified that, although the Audit Report indicates an income of Kes 54,000,000, about Kes 50,000,000 went to expenses and the balance of Kes 4,000,000 went to recurrent expenses.

Issues For Determination And Analysis 8. I have carefully considered the application, supporting affidavit, grounds of opposition, the notice of preliminary objection and the oral submissions by counsel. The issues that fall for determination are: -a.Whether the Petitioner’s claim is res judicata.b.Whether stay of execution should be granted pending the hearing and determination of the declaratory suit.c.Whether the decretal sum should be settled by instalments.

Re judicata 9. The rules of procedure for this court are silent on the doctrine of res judicata. The practice has been that, whenever the court encounters any lacuna in its rules, it resorts to the Civil Procedure Rules. I will do the same herein and proceed to cite section 7 of the Civil Procedure Act which proves 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.”

10. The applicant’s counsel admitted in his oral submissions that this court determined the issue of stay of execution pending the hearing and determination of the declaratory suit. He also admitted that the court gave stay order on condition that the whole decretal sum be deposited in court. He submitted that the applicant was unable to comply with the condition for the stay due to financial constraint.

11. The foregoing admission confirms that the issue of stay of execution pending determination of the declaratory suit was litigated before this court and conclusively determined. The application is therefore res judicata on the issue of stay of execution and also payment by instalments. He cannot have a second bite on the cherry.

12. I gather support from the case of C.K Bett Traders Limited & 2 others v Kenndy Mwangi & another[2021] eKLRwhere the court held that:“Res judicata is normally pleaded as a defence to a suit or cause that the legal rights and obligations of the parties have been decided by an earlier judgment, which may have determined the questions of law as well as of fact between the parties. In other words, res judicata will successfully be raised as a defence if the issue(s) in dispute in the previous litigation or suit were between the same parties as those in the current suit; the issues were the directly or substantially in issue in the previous suit as in the current suit and they were conclusively determined by a court of competent jurisdiction.”

13. Again, in the case of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2007] eKLR the Court held that:“… This application appears to challenge the doctrine of finality. This is a doctrine which enables the courts to say litigation must end at a certain point regardless of what the parties think of the decision which has been handed down. It is a doctrine or principle based on public interest. As I stated earlier, there are instances where the public interest principles are in conflict and the courts must balance one aspect against another and decide which one supersedes the other, of course, depending on the facts and circumstances of each case. The conflict here is that the applicants feel they were not given a fair hearing by an impartial court. The principle of finality requires that litigation should come to an end. On the basis of the existing rules of practice, the applicants were heard by this court and judgment was pronounced.”

14. I further find that the application is incompetent, frivolous, vexatious and an abuse of the process of this court because the applicant wants to engage the court in circles of similar applications and is not ready to comply with the orders given.

15. As by the way, I wish to state that the Report of the Auditor General for the year ending on June 30, 2022, annexed to the applicant’s supporting affidavit, the company made an income of Kes 54,306,969. Previously in the year 2021 it made Kes 58,447,039. The report also raised audit queries and the Auditor gave a qualified opinion because of financial mismanagement. It follows that the applicant is able to settled the decretal sum but it is deliberately refusing to do so. The reason being that the payment should come from the insurance company.

Conclusion 16. I have found that Notice of motion dated August 11, 2023 is res judicata, frivolous, vexatious and an abuse of the process of this court. Consequently, I allow the claimant’s objection and strike out the motion with costs.

DATED, SIGNED AND DELIVERED AT NYERI THIS 10TH DAY OF NOVEMBER, 2023. ONESMUS N MAKAUJUDGEORDERThis ruling has been delivered to the parties via Teams video conferencing with their consent, having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court.ONESMUS N. MAKAUJUDGE