[2023] KEHC 27381 (KLR)

Logistics Link Limited v Yalelo(U) Limited & another (Civil Suit E067 of 2021) [2023] KEHC 27381 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 27381 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Suit E067 of 2021

DKN Magare, J

December 14, 2023

Between

Logistics Link Limited

Plaintiff

and

Yalelo(U) Limited

1st Defendant

Segtex Logistics Limited

2nd Defendant

Ruling

1. The parties as they then were, Logistics Link Limited = vs Yalelo (U) Limited filed a consent which was adopted on 9/2/2023. The consent dealt with certain aspects of the suit. An application dated 26/4/2023 was filed joining Segtex Logistics Ltd as the 2nd defendant.

2. I burnt midnight oil and ordered that the matter be listed for the balance of the claim. The plaintiff was to amend the plaint to include the 2nd defendant. Another application was filed on 17/7/2023. The Applicant filed submissions. It must be recalled that the relationship herein related to clearing and forwarding agreement.

3. The applicant prayed that the suit bee struck out since the issues were resolved through the consent on 23/7/2021.

4. The application have been dealt within their own merit. There is no ground show that this suit is res judicata any other. The reasoning is to constrained.

5. The application was literally unopposed. The duty to deal with Applications of this nature does not change due to the same being exparte.

6. In Raila Amolo Odinga & Another v Independent Electoral and Boundaries Commission & 2 Others [2017] eKLR, thus:(132)Though the legal and evidential burden of establishing the facts and contentions which will support a party’s case is static and “remains constant through a trial with the plaintiff, however, “depending on the effectiveness with which he or she discharges this, the evidential burden keeps shifting and its position at any time is determined by answering the question as to who would lose if no further evidence were introduced.

7. In CMC Aviation Ltd v Crusair Ltd (No1) [1987] KLR 103, Madan JA, (as he then was) was of the view that: -“The pleadings contain the averments of the three parties concerned. Until they are proved or disproved, or there is admission of them or any of them by the parties, they are not evidence and no decision could be founded on them. Proof is the foundation of evidence.As stated in the definition of “evidence” in section 3 of the Evidence Act, evidence denotes the means by which an alleged matter of fact, the truth of which is submitted for investigation, is proved or disproved. Averments are matters the truth of which is submitted for investigation. Until their truth has been established or otherwise they remain unproven...The pleadings in a suit are not normally evidence. They may become evidence if they are expressly or impliedly admitted as then the admission itself is evidence. Evidence is usually given on oath. Averments are not made on oath. Averments depend upon evidence for proof of their contents.

8. In a nutshell whether opposed or not the burden of proof was on the Applicant to show that this matter is res judicata. Res judicata is a term of art. It is not open for conjecture of hyperbole.

9. Section 7 of the Civil Procedure Act Cap 21 Laws of Kenya defines the doctrine of Res Judicata in the following terms: -“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 Civil Procedure Act also provides explanations with respect to the application of the res judicata rule. Explanations 1-3 are in the following terms:i.‘’Explanation. (1)—The expression “former suit” means a suit which has been decided before the suit in question whether or not it was instituted before it.ii.Explanation. (2)—For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court.iii.Explanation. (3)—The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.’’

11. In the dicta in In re Estate of Riungu Nkuuri (Deceased) [2021] eKLR the court stated as follows:“The test for determining the Application of the doctrine of res-judicata in any given case is spelt out under Section 7 of the Civil Procedure Act. In Independent Electoral & Boundaries Commission vs Maina Kiai & 5 Others [2017] eKLR, the Supreme Court while considering the said provision held that all the elements outlined thereunder must be satisfied conjunctively for the doctrine to be invoked. That is:"(a)The suit or issue was directly and substantially in issue in the former suit.(b)That former suit was between the same parties or parties under whom they or any of them claim.(c)Those parties were litigating under the same title.(d)The issue was heard and finally determined in the former suit.(e)The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.”

12. In the case of Attorney General & another ET vs (2012) eKLR where it was held that;“The courts must always be vigilant to guard litigants evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the court. The test is whether the plaintiff in the second suit is trying to bring before the court in another way and in form of a new cause of action which has been resolved by a court of competent jurisdiction. In the case of Omondi s NBK & Others (2001) EA 177 the court held that “parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit”.In that case the court quoted Kuloba J, (as he then was) in the case of Njanju vs Wambugu and another Nairobi HCC No. 2340 of 1991 (unreported) where he stated: If parties were allowed to go on litigating forever over the same issue with the same opponent before courts of competent jurisdiction merely because he gives his case some cosmetic face lift in every occasion he comes to court, then I do not see the use of doctrine of res judicata…..”.

13. In essence therefore, the doctrine implies that for a matter to be res judicata, the matters in issue must be similar to those which were previously in dispute between the same parties and the same having been determined on merits by a court of competent jurisdiction. The court in the English case of Henderson v Henderson (1843-60) All E.R 378, observed thus:“…where a given matter becomes the subject of litigation in, and of 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 case, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time.”

14. Res judicata applies to applications just like suits. In the case of Julia Muthoni Githinji v African Banking Corporation Limited [2020] eKLR the court stated thus:“14. After a careful reappraisal of the application for injunction before the lower court, I have come to the conclusion that the application was resjudicata and the entire suit was subjudice as there was an active pending suit before a court of competent jurisdiction being Nakuru ELC No. 272 of 2017. All issues raised in the suit before the subordinate court could be properly litigated in the suit pending before the ELC. The filing of the suit by the appellant in the subordinate court when she had a similar suit in the ELC Court was an abuse of the Court process which the Court cannot countenance.

15. In Maumbwa & 3 others v Kisemei (Civil Appeal E009 of 2021) [2022] KEHC 10416 (KLR) (26 May 2022) (Judgment Maumbwa & 3 others v Kisemei (Civil Appeal E009 of 2021) [2022] KEHC 10416 (KLR) (26 May 2022) (Judgment) the court stated doth:“By comparing the two applications and the authorities on res judicata, it is clear to me that the issues being canvassed in the application dated 11th January 2021 is res judicata. The issues in issue in that application were directly and substantially in issue in the application dated 13th September 2017. These issues relate to the same parties and these issues have been tried by a competent court. To my mind to bring the same issues between the same parties that have been determined by a court of competent jurisdiction is an abuse of the court process.”

16. The Applicant made an application dated 17/7/2023 seeking the following orders: -a.That the suit herein be struck out for being scandalous, frivolous and vexatious and otherwise an abuse of the process of the Court;b.That the suit herein be struck out for being res judicata as the issues / claim / dispute between the parties were determined vide consent order dated 23rd July 2021;c.This Honorable Court do consequently issue further orders that are just and equitable in regard to the suit herein; andd.Costs of the Application herein be awarded to the Applicant.

17. The application is grounded on the following grounds: -a.That the Respondent herein filed suit vide a plaint dated 16th July 2021 alleging an oral agreement was entered into between the parties herein for clearing and forwarding services;b.The Respondent alleges it was a term of the oral agreement that the Respondent would purportedly utilize a “revolving facility” maintained with an entity known as MS CMA-CGM (a shipping line) to settle costs incurred by the Applicant. That the Respondent in the Plaint was claiming the sum of USD 16,710 allegedly incurred on behalf of the Applicant through the “revolving facility”. The Respondent filed together with the Plaint an application seeking to detain containers of the Applicant which was ranted and the Respondent proceeded to actually detain shipping containers of the Applicant containing fish feed.c.The matter was wholly compromised by a consent dated 23rd July 2021 for the all inclusive sum of USD 6,000. 00. The consent terms provided that the Defendant’s payment of the amount of USD 6,000. 00 was to be made in full and final settlement of the matter.d.The Applicant complied with terms of the consent and proceeded to pay the Respondent the sum of USD 6,000 on 26th July 2021 and the matter was marked as settled. The detained containers were released to the Applicant.e.That the Respondent through an application dated 31st August 2022 moved to court seeking to stay the consent dated 23rd July 2021. By another application dated 25th October 2022, the Respondent moved court seeking leave to attach the Applicant’s containers / cargo. The two applications were premised on the ground that the Applicant had not fulfilled conditions laid out in the consent dated 23rd July 2021 that is, the Applicant hadn’t settled any amounts relating to the purported Revolving facility with M/S CMACGM.f.The terms of the Consent dated 23rd July 2021 were clear and did not provide for the settlement of any further sum to M/S CMA-CGM or the Respondent aside from the sum of USD 6,000 which the Applicant duly paid.g.The applications dated 31st August 2022 and 25th October 2022 were not properly served on the Applicant. No leave was sought to serve the Applicant outside the jurisdiction of Kenya. The court on 25th October 2022, ordered detainment of the Applicant’s containers / cargo on the basis of non-payment of the sum of USD 16,710. h.The same amount that was compromised vide the consent dated 23rd July 2021 the suit or issue now is directly and substantially in issue as the former suit that was comprised via a consent dated 23rd July 2021. In the plaint dated 16th July 2021, the Respondent sought to have the court issue orders detaining the Applicant’s containers /cargo owing to an alleged debt of USD 16, 710. 00. The entire suit was compromised by a consent dated 23rd July 2021, that provided for a final payment of USD 6,000. This alleged debt that was settled is now what is being claimed.i.That the former suit was between the same parties. The parties in the suit comprised vide the consent dated 23rd July 2021 are the same as the parties now litigating.j.Those parties were litigating under the same title. Their capacities are the same and so is the right they attempt to enforcek.The issue was heard and finally determined in the former suit – the matter was wholly comprised by the consent entered by the parties dated 23rd July 2021. l.The court that formerly heard and determined the issue is competent to try this subsequent suit. The consent that compromised the earlier suit was filed before this Honorable Court which adopted the consent. It is also this same court that the Respondent is trying to litigate the same matter again after the same was conclusively determined.m.This suit herein is an abuse of the judicial process and a waste of Honourable court’s times and resources and should be Struck Out.

18. I have set out the grounds in support as set out in the Application to enable me fathom the head or tail of the Application. Though there is a consent on record, most of the dispute in the pleadings is not tackled. The applicant filed detailed submissions on the Application. They stated that the issues for determination are:a.Whether the Applications filed on the 31st of August 2022, 25th of October 2022 by the Respondent and the suit herein are res judicata;b.Whether this Court became functus officio upon adoption of the consent dated 23rd July of 2021;c.4. 3 Whether the Applicants have satisfied the grounds for setting a side a consent order;d.5. Whether the Applications filed on the 31st of August 2022, 25th of October 2022 by the Respondent and the suit herein are res judicata. - The main prayer in the Applicants present application is for the suit to be struck out for being res judicata since the issues / claim /dispute between the parties were determined vide consent order dated 23rd July 2021.

19. None of the issues above arise from the Application file. I had hitherto set out each of the grounds in full. Where the two applications came from is still a mystery. They rely on the case of John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 others [2015] eKLR as cited in Accredo AG & 3 others v Steffano Uccelli & another [2019] eKLR where it was observed;“.......res-judicata is based on the public interest that there should be an end to litigation coupled with interest to protect a party from facing repetitive litigation over the same matter. Res-judicata ensures the economic use of court’s limited resources and timely termination of cases. Courts are already clogged and overwhelmed. They can hardly spare time to repeat themselves on issues already decided upon. It promotes confidence in the courts and predictability which is one of the essential ingredients in maintaining respect for justice and the rule of law. Without res judicata, the very essence of the rule of law would be in danger of unraveling uncontrollably....”

20. The second authority they relied on the decision Independent Electoral and Boundaries Commission v Maina Kiai & 5 others [2017] eKLR where the Supreme Court observed the requirements of Section 7 of the Civil Procedure Act as follows: -“For the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must be satisfied, as they are rendered not in disjunctive but conjunctive terms;a.The suit or issue was directly and substantially in issue in the former suit.b.That former suit was between the same parties or parties under whom they or any of them claim.c.Those parties were litigating under the same title.d.The issue was heard and finally determined in the former suit.e.The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.”

21. It was their case that res judicata has been proved. Their argument was that The present suit or issue is directly and substantially in issue as the former suit that was, in the plaint dated 16th July 2021, the Respondent sought to have the court issue orders detaining the Applicant’s containers owing to an alleged debt of USD. 16,710. The suit was compromised by a consent dated 23rd July 2021 which provided for a final payment of USD. 6,000. My Lord payment of the debt has now been made again the issue for determination in the current pending applications dated 25. 10. 2022 and 31. 08. 2022; the former suit was between the same parties or parties under whom they or any of them claim - The parties in the suit comprised vide the consent dated 23rd July 2021 are the same as the parties in the current applications that is, Logistics Link Limited and Yalelo (U) Limited. Those parties were litigating under the same title and their capacities are the same.

22. It was their case that the issue was heard and finally determined in the former suit - the matter was wholly compromised by the consent entered by the parties dated 23rd July 2021. The court that formerly heard and determined the issue was competent – the consent that compromised the earlier suit was filed and adopted in this Honorable Court. It is also before this Honorable Court that the Respondent is trying to litigate the same matter after it was wholly compromised by adoption of the consent.

23. On whether this Court became functus officio upon adoption of the consent dated 23rd July 2021, they relied on the case of Telkom Kenya Limited v John Ochanda (suing on his behalf and on behalf of 996 former Employees of Telkom Kenya Limited) [2014] eKLR, where the court held as follows about the doctrine of functus officio: -“Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon….”

24. They adopted a definition of function officio as set out in the case of John Gilbert Ouma v Kenya Ferry Services Limited [2021] eKLR, where the court stated as doth: -“It is clear that the doctrine of functus officio does not bar a court from entertaining a case it has already decided but prevents it from revisiting the matter on a merit-based reengagement once final judgement has been entered and a decree issued, as is the case herein.”

25. It was their case that the consent has not been set aside. They rely on the case of consent order was discussed by in the case of Flora Wasike v. Destimo Wamboko (1982 -1988)1 KAR 625 (which was relied on in Munyiri v Ndunguya [1985] eKLR, where Hancox JA (as he then was) held as follows:“It is now settled law that a consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside, or if certain conditions remain to be fulfilled, which are not carried out."

26. They also relied on the case of Brooke Bond Liebig v. Mallya 1975 E.A. 266, where the court succinctly stated that: -“A consent judgment may only be set aside for fraud collusion, or for any reason which would enable the Court to set aside an agreement.”

27. In the case of Dinesh Construction Company Limited v Kenya Sugar Research Foundation [2021] eKLR, where the court stated as doth: -“.......This Court having in its Ruling of 15th April 2020 determined that the Applicant was truly indebted to the Respondent and having adopted the consent dated 27th July 2018 as an order of the Court is now functus officio in the matter. To hold otherwise would amount to reviewing the consent which has not been prayed for.....”.

28. Parties are bound by their pleadings. What the applicant sought is substantially different from what they submitted on. Parties are bound by their pleadings. They cannot seek to enrich pleadings with submissions as submissions are not pleadings. They cannot be the foundation of a case.

29. In the case of Salim Said Mtomekela, Versus Mohamed Abdallah Mohamed (Civil Appeal No. 149 Of 2019, the Court of Appeal of Tanzania sitting at Dar-Es-Salaam (Mugasha., Kihwelq. And Rumanyika. JJ.A. Held as doth: -“In Barclays Bank (T) Vs Jacob Muro, Civil Appeal No. 357 of 2018 (all unreported) …. the Court cited with approval a passage in an article by Sir Jack I.H. Jacob bearing the title, "The Present Importance of Pleadings", first published in Current Legal Problems (1960) at p. 174 whereby the author among other things said:the Court cited with approval a passage in an article by Sir Jack I.H. Jacob bearing the title, "The Present Importance of Pleadings", first published in Current Legal Problems (1960) at p. 174 whereby the author among other things said: "As the parties are adversaries, it is left to each one of them to formulate his case in his own way subject to the basic rules of pleadings... for the sake of certainty and finality, each party is bound by his own pleadings and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he as to meet and cannot be taken by surprise at the trial. The court itself is as well bound by the pleadings of the parties as they are themselves. It is not part of the duty of the court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings...In the bolded expression, it is glaring that since parties are bound by their pleadings, neither the parties nor the court can depart from 6 such pleadings except where the court has granted leave to amend the requisite pleadings.

30. In the case of Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR, Justice A C Mrima held as follows: -“That settled position was re-affirmed by the Court of Appeal in the case of Independent Electoral and Boundaries Commission & Ano. vs. Stephen Mutinda Mule & 3 others (2014) eKLR which cited with approval the decision of the Supreme Court of Nigeria in Adetoun Oladeji (NIG) vs. Nigeria Breweries PLC SC 91/2002 where Adereji, JSC expressed himself thus on the importance and place of pleadings:-“…..it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded………In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation.”12. The Supreme Court of Kenya in its ruling on inter alia scrutiny in the case of Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR found and held as follows in respect to the essence of pleadings in an election petition: -“In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings…...’”

31. In the case of Robert Ngande Kathathi v Francis Kivuva Kitonde [2020] eKLR, the court stated as follows: -As was held by Mwera, J (as he then was) in Erastus Wade Opande vs. Kenya Revenue Authority & Another Kisumu HCCA No. 46 of 2007:“Submissions simply concretize and focus on each side’s case with a view to win the court’s decision that way. Submissions are not evidence on which a case is decided.”The same Judge in Nancy Wambui Gatheru vs. Peter W Wanjere Ngugi Nairobi HCCC No. 36 of 1993 expressed himself as follows:“Indeed and strictly speaking submissions are not part of the evidence in a case. Submissions, to this court’s view, are a course by which counsel or able litigants focus the court’s attention on those points of the case that should be given the closest scrutiny in order to firmly establish a claim/charge or disprove it. Once the case is closed a court may well proceed to give its judgement. There are many cases especially where parties act in person where submissions are not heard. Even some counsel may opt not to submit. So submissions are not necessarily the case.”

32. Given the forgoing, I need to understand how the Applicant wishes to have a different application and diametrically opposite submissions and expect the court to find for them on basis of the submissions.

33. I understand that there is no other suit describing the consent as a former suit is thus a misnomer. The case substantially compromised. What case remains for striking out? If I strike out the case, what happens to the consent. Is it possible that the Applicant was misled to enter into a consent they don’t wish to be hound to? If so, is striking out a remedy for such.

34. Further there is already an order joining Segtex Logistics Limited as the second defendant. I have neither seen nor been informed of any Appeal from the decision I made on 3rd day of July ,2023. The application there begs that it be dismissed.

35. In the circumstances. I make the following order: -a.The application dated 17/7/2023 lack merits and is dismissed in limine.b.The Appellant matter be listed for hearing after the call over.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 14TH DAY OF DECEMBER, 2023. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:-Mr. Wachira for 1st RespondentNo appearance for the PlaintiffCourt Assistant - Brian