[2006] KEHC 3355 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA

Civil Suit 528 of 1998

LAWI DUDA & OTHERS…………………………PLAINTIFFS

VERSUS

BAMBURI CEMENT LIMITED…………………..DEFENDANT

RULING

By its chamber summons dated the 5th April 2006 brought under Order 6 Rule 13 (1) (c) and (d) of the Civil Procedure Rules the defendant seeks the dismissal of this suit on the ground that it is an abuse of the process of this court. When the application came up for hearing before me on the 11th October 2006 Dr. Khaminwa, counsel for the plaintiffs, raised a preliminary objection written notice of which he had given. He argued that the matter is res judicataas the defendant brought a similar application in 2000 which was dismissed by Mrs. Tutui, the Commissioner of Assize on 22nd March 2002.

Mr. Kingi for the plaintiff, opposing the application, submitted that the matter is not res judicataas the 2000 application dated 22nd August 2000 was based on different grounds from those upon which the present one is based. That application was also not supported by an affidavit as this one is. More over, he further submitted, that application was not dismissed on its own merits.

I have looked at both the applications. The one of 22nd August 2000 sought the striking out of the suit on the grounds that:-

“(a) The cause of action is separate and distinct for each plaintiff.

(b)Each plaintiff’s (sic) have failed to comply with the provisions of the Judicature Act Cap 8 of the laws of Kenya.

(c)That the plaint disclosed no reasonable cause of action.”

The present application seeks the dismissal of this suit on the ground that, given the fact that the plaintiffs’ services were terminated as a result of the Defendant company’s re-organization and the plaintiffs were so informed and paid all their terminal benefits, this suit is an abuse of the process of court.

In my view these are more or less similar applications. I am therefore unable to agree with Mr. Kingi’s argument that the grounds in the earlier application were different. Even if they were I cannot still accept the argument. To accept it would mean that a party will seek the striking out of a pleading on the ground that it does not disclose a reasonable cause of action or defence and if his application is dismissed he will refashion it on the ground of being an abuse of the process of court and get away with it. Parties are not allowed to litigate in instalments. They should plead their whole case at the first instance. If they fail to do that their later claims will be shut out. Explanation No. 4 to section 7 of the Civil Procedure Act makes that very clear.

“Any matter which might and ought to have been made aground of defence or attack in such former suit shall bedeemed to have been a matter directly and substantiallyin issue in such suit.”

In the case of Yat Tung Investment Company Limited – Vs – Dao Heng Bank Limited and Another [1975] AC 581this is how the Privy Council dealt with a similar issue:-

“But there is a wider sense in which the doctrine may beappealed to, so that it becomes an abuse of the process toraise in subsequent proceedings matters which could andtherefore should have been litigated in earlier proceedings.

The locus classicussof that aspect of res judicatais the Jugment of Wigram VC in Henderson– Vs – Henderson(1843) Hare 100, 115,where the Judge says:

‘Where a given matter becomes the subject oflitigation in, and of adjudication by, a court ofcompetent jurisdiction, the court requires theparties to that litigation to bring forward theirwhole case and will not (except under special cirumstances) permit the same subject of litigationin respect of matter which might have been broughtforward as part of the subject in contest, but whichwas not brought forward, only because they have,from negligence, inadvertence, or even accident omittedpart of their case. The plea of res judicataapplies,except in special cases, not only to points upon which thecourt was actually required by the parties to form anopinion and pronounce judgment, but to every pointwhich properly belong to the subject of litigation andwhich the parties, exercising reasonable diligence,might have brought forward at the time.”

The ground being relied upon in the present application that the suit is an abuse of the process of court should have been raised in the earlier application. If that was the only issue in this application I would have struck it out as being res judicata.

In this case, however, having perused the ruling of the Commissioner of Assize I am satisfied that the matter is not res judicata.This is because the application was not decided on its merits. A matter is not res judicata if it has not been decided on its merits – Kibogy – Vs – Chemweno [1981] KLR 35 and Wangulu – Vs – Kania [1987] KLR 51. In the case of Anaj Warehousing Ltd – Vs – National Bank of Kenya Ltd & Another, Mombasa HCCC No. 311 of 2000 I said:-

“A matter is res judicatawhen it has been heard and finallydecided. And a matter is ‘heard and finally decided’ whenthe court which has heard it has ‘exercised its Judicialmind on’ the matter in controversy after it has heardarguments, considered it and come to a decision on it.

See Vol. 1 Mulla on The Code of Procedure, 17th EditionAt page 279. ”

In this case as I have said the Commissioner of Assize did not dismiss the matter on its merits. She thought that the application was attacking the plaint as it stood before amendment. As the plaint had been amended she did not see the reason for striking it out and she dismissed the application. So she did not go into the merits of the application. In view of this I hold that the matter is not res judicataand I accordingly overrule the preliminary objection and order that the application be heard and determined on its own merits. Costs in cause.

DATED and delivered this 16th day of November 2006.

D. K. MARAGA

JUDGE