[2020] KEELC 3676 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAKURU

CASE No. 305 OF 2018

LYDIA WANJIRU (Suing as the personal attorney of

ANNE NJOKI NDUNGU)..........................................................................PLAINTIFF

VERSUS

KENYA POWER AND LIGHTING CO. LIMITED..........................DEFENDANT

RULING

1. This ruling is in respect of defendant’s Notice of Motion dated 15th April 2019 through which an order that this suit be struck out for being an abuse of the court process is sought. The application is based on the following grounds:

(i) The suit herein is Res Judicata.

(ii) That the matters raised in the suit were canvassed in NAKURU CMCC No. 1143 of 2014 between LYDIA WANJIRU (Suing as the personal attorney of ANNE NJOKI NGUNGU) v KENYA POWER & LIGHTING COMPANY LTD which was seeking the same prayers as the present suit herein and indeed the subject matter is virtually the same as in the present matter.

(iii) This suit is filed contrary to section 7 of the Civil Procedure Act, 2010 and therefore the Honourable Court lacks jurisdiction to grant the prayers against the defendant.

(iv) That the ruling of the court was delivered to the effect that the suit by the plaintiff was dismissed as it offends the provisions of Section 3, 6(1), 48, 49, 50 and 108 of the Energy Act Cap 314 Laws of Kenya on Jurisdiction and dismissed the suit thereto.

(v) That the suit has already been determined by a court of competent jurisdiction and hence the suit is bad in law, vexatious and an abuse of the court process and as such, it ought to be struck out with costs.

(vi) That this application is brought to court without any undue or inordinate delay.

(vii) That this Honourable Court has unfettered discretion to grant the reliefs sought.

2. The application is supported by an affidavit sworn by E.C. Sitienei Advocate who is in conduct of the matter on behalf of the defendant. He deposed that the plaintiff filed a similar suit being Nakuru CMCC No. 1143 of 2014 Lydia Wanjiru (Suing as the personal attorney of Anne Njoki Ndungu) v Kenya Power & Lighting Company Ltd in which she sought the same orders as those sought in this suit. He added that the defendant raised a preliminary objection in the matter which was upheld in a ruling delivered on 16th November 2017 and that consequently, this suit is res judicata.

3. The plaintiff responded to the application through her replying affidavit sworn on 31st May 2019 in which she admitted that she indeed filed the said case and added that the defendant herein filed an application in the said case contending that the court did not have jurisdiction and that the said application was allowed. She added that the suit was not heard to finality and therefore res judicata is not applicable.

4. The application was canvassed through written submissions. The applicant filed submissions on 17th July 2019 while the respondent filed submissions on 24th September 2019. The applicant submitted that the respondent ought to have filed the present suit at the Energy Regulatory Commission in view of the provisions of Section 3of theEnergy Actand that the case in the subordinate court was dismissed by a court of competent jurisdiction. On her part, citing the case of Enock Kirao Muhanji v Hamid Abdalla Mbarak [2013] eKLR the respondent argued that the suit in the subordinate court was dismissed for want of jurisdiction and res judicata does not therefore apply. She further argued that this is a claim of trespass and that this court has jurisdiction in view of the provisions of Section 13of theEnvironment and Land Court Act.

5. I have carefully considered the application, the affidavits and the submissions. The doctrine of res judicata has statutory expression at Section 7of the Civil Procedure Act which provides:

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.

6. For res judicata to apply in a particular matter, there must have been a previous suit in which the matter was in issue; the parties in both matters must be the same or litigating under the same title; the previous matter must have been heard and determined by a competent court and the issue is raised once again in the new suit. SeeJohn Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others [2015] eKLR. Res judicata operates as a complete estoppel against any suit that runs afoul of it. SeeMaithene Malindi Enterprises Limited v Kaniki Karisa Kaniki & 2 others [2018] eKLR.

7. The respondent herein admits that another suit concerning the same subject matter as that in this case being Nakuru CMCC No. 1143 of 2014 Lydia Wanjiru (Suing as the personal attorney of Anne Njoki Ndungu) v Kenya Power & Lighting Company Ltd existed between her and the defendant herein and that it was dismissed as averred by the applicant. She however maintains that the dismissal was owing to want of jurisdiction on the part of the subordinate court. Unfortunately, none of the parties herein annexed the ruling and proceedings of the subordinate court. Nevertheless, I called for and perused the file. I note that defendant raised a preliminary objection dated 27th January 2017 on the grounds that the subordinate court lacked jurisdiction owing to the provisions of Sections 3, 6(1), 48, 49, 50 and 108 of the Energy Act. The objection was upheld in a ruling delivered on 22nd November 2017 and the suit was dismissed. Just like this suit, the suit in the subordinate court concerned the question of the defendant accessing the property known as Bahati/Kabatini Block 1/3091 and installing a stay wire thereon. The court having reached the conclusion that the proper forum for the plaintiff to agitate her case was the Energy Regulatory Commission, the plaintiff cannot bring the very same issue back to court. Her only options were to seek review or setting aside from the subordinate court if available or to appeal.

8. I therefore agree with the defendant that this suit offends the doctrine of res judicata as provided under Section 7of the Civil Procedure Act. Notice of Motion dated 15th April 2019 therefore succeeds. This suit is hereby struck out. The defendant shall have costs of both the application and the suit.

Dated, signed and delivered in open court at Nakuru this 13th day of February 2020.

D. O. OHUNGO

JUDGE

In the presence of:

Ms Ngugi holding brief for Mr Kibichi for the defendant/applicant

Ms Wangari for the plaintiff/respondent

Court Assistants: Beatrice & Lotkomoi