[2023] KEHC 25328 (KLR)

Makupa Transit Shades Ltd & another v Kenya Ports Authority (Commercial Case E021 of 2023) [2023] KEHC 25328 (KLR) (15 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25328 (KLR)

Republic of Kenya

In the High Court at Mombasa

Commercial Case E021 of 2023

DKN Magare, J

November 15, 2023

Between

Makupa Transit Shades Ltd

1st Plaintiff

Boss Freight Terminal Ltd

2nd Plaintiff

and

Kenya Ports Authority

Defendant

Ruling

1. This case is basically a battle for the soul of South Sudan. Each of the parties, like the Merchant in the Merchant of Venice, of the Shakespeare epok. The shylock, once stated: -

2. The firm of Gikandi & Company Advocates filed an application on 17/10/2023. I sought to Rule on it he stated he needed to be heard. Nature conspired such that he was finally not heard. This Ruling is made on basis of only submissions. The clear the issues, there appears to be a notice of Appeal filed on 17/10/2023 over a decision made on 11/10/2023. I see no decision of this Court on the said date the proposed appellant is also not a party to the same.

3. The Applicant made applications dated 14/9/18 and 18/9/2023. The chronology of the matter is that on 8/9/2023. The Plaintiffs filed suit against Kenya Ports Authority. In the plaint the Plaintiffs claim the following: -a.A declaration that the Defendant actions are illegal and a blatant violation of the Plaintiffs rights.b.An order of permanent injunction be and is hereby issued to restrain the Defendant, its agents, officers, employees, assigns or any other person acting for, in the place and on authority of the Defendant redirecting any cargo where consignees have nominated the Plaintiffs herein as their CFS choice.c.A mandatory injunction order be and is hereby issued compelling the Defendant to forthwith release any and/ or cargo whose owners have nominated the Plaintiffs herein as the CFS of choice.d.An order do issue directing the Defendant herein to reimburse the Plaintiff’s for the financial lo suffered after the Defendant redirected cargo where the plaintiffs were nominated to handle and clear.e.General damagesf.Costs of this suit.g.Any other prayer that the court deems necessary and equitable to issue in the circumstances.

4. Simultaneous with the plaintiff the applicant filed 2 applications. The first one dated 7/9/2023 seeks that the matter be certified as urgent and be heard during the vacation. The raison d’etre for the application was that their business was being diverted.

5. The application was accompanied by another application, also dated 9/9/2023, seeking the following prayers: -a.That this Honourable court be pleased to certify this matter as urgent and to dispense with service of this application in the first instance.b.That pending the hearing and determination of this Application, a temporary injunction do issue restraining the Defendant, its agents, officers, employees, assigns or any other person on authority of the Defendant from redirecting to third parties, any cargo where consignees have nominated the plaintiffs herein as their CFS of choice.c.That pending the hearing and determination of the suit filed herewith, temporary injunction do issue restraining the Defendant, its agent officers, employees, assigns or any other person authority of the Defendants of from redirecting to third parties, any cargo where consignees have nominated the Plaintiffs herein as their CFS of choice.d.That cost for this Application be in the course.

6. The Defendant appointed advocates on 5/10/2023. Ms Gikandi & Co. Advocates were appointed on 14/9/2023 by Autoports Nairobi Freight Terminal limited and Compact Freight System Limited. On 15/9/2023, the proposed defendant filed another application under certificate of urgency dated 14/9/2023.

7. They state that the claim was brought without them being heard. They sought the following prayers:-a.This application be certified as urgent.b.That court be pleased to allow Messers Compact Freight Systems Limited and Autoports Nairobi Freight Terminal Limited to be joined as Defendants in this matter and that no proceedings should take place in the absence of the said parties.c.That upon such order of the said Messers Compact Freight Systems Limited and Auto ports Nairobi Freight Terminal Limited being joined in the suit, further directions be given by the court with regard to the hearing of the matter.d.That costs of the application be in the cause.

8. Their interest is that they have an interest in cargo destined to South Sudan. They are of the view that they should be heard. They have already filed Petition No. 002 of 2023 between themselves and Cabinet Secretary Road and Transport and 3 others. What I understand them to be stating, is that the allegation of diverting cargo touches on them since the defendant does not handle cargo. The interested parties are handling the said cargo. Therefore, the so called diverting touches on their business.

9. The application is supported by the affidavit of Salim Juma Ali the General Manager of the proposed 2nd Defendant. They need to the suit a concentrating order issued in a Ruling by the High Court in Nairobi. The 3rd proposed defendant swore an affidavit through Peter Ng’ang’a who adopted the evidence of Ali.

10. The petition in Nairobi indicated that there is a contract to handle cargo destined to South Sudan, and on 13/12/22 the Cabinet Secretary waited to dethrone then and place different parties. Without going to the merits of the amended petition, they state that a Ruling was given on 18/8/2023 allowing the following prayers: -“Pending the hearing of the petition, a conservatory order be issued restraining the Respondents from interfering with the current existing arrangement whereby cargo destined for South Sudan passing through the port of Mombasa is handled, stored and warehouses by of the petitioners.

11. The ruling relied on affidavits of the very same General managers who swore affidavits herein, that is, Salim Juma Ali the General Manager of the proposed 2nd Defendant and Peter Ng’ang’a the general Manger of the proposed 3rd defendant.

12. To the applicants, there is need to be heard, in view of the order in situ in their favour on 18/9/2023, the same applied made an application for stay of the orders in situ. I declined to grant the orders then as they were not parties in the mater. It is only parties to a suit who can be heard.

13. The Supreme Court in the case of Methodist Church in Kenya v Mohamed Fugida [2019] eKLR stated as doth: -“53] What should we make of a cross-petition fashioned as such" Yet this Court has been categorical that the most crucial interest or stake in any case is that of the primary parties before the Court. We did remark, in Francis Karioki Muruatetu & another v Republic & 5 others, Sup. Ct. Pet. 15 & 16 of 2015 (consolidated); [2016] eKLR, as follows (paragraphs 41, 42):“Having carefully considered all arguments, we are of the opinion that any party seeking to join proceedings in any capacity, must come to terms with the fact that the overriding interest or stake in any matter is that of the primary/principal parties’ before the Court. The determination of any matter will always have a direct effect on the primary/principal parties. Third parties admitted as interested parties may only be remotely or indirectly affected, but the primary impact is on the parties that first moved the Court. This is true, more so, in proceedings that were not commenced as Public Interest Litigation (PIL), like the proceedings now before us. Therefore, in every case, whether some parties are enjoined as interested parties or not, the issues to be determined by the Court will always remain the issues as presented by the principal parties, or as framed by the Court from the pleadings and submissions of the principal parties. An interested party may not frame its own fresh issues or introduce new issues for determination by the Court. One of the principles for admission of an interested party is that such a party must demonstrate that he/she has a stake in the matter before the Court. That stake cannot take the form of an altogether a new issue to be introduced before the Court” [emphasis supplied].(54)In like terms we thus observed in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others, Civil Appeal No. 290 of 2012 (paragraph 24):“A suit in Court is a ‘solemn’ process, ‘owned’ solely by the parties. This is the reason why there are laws and Rules, under the Civil Procedure Code, regarding Parties to suits, and on who can be a party to a suit. A suit can be struck out if a wrong party is enjoined in it. Consequently, where a person not initially a party to a suit is enjoined as an interested party, this new party cannot be heard to seek to strike out the suit, on the grounds of defective pleadings.”(55)Against such a background, the trial Court ought not to have entertained issues arising from the cross-petition by the interested party, especially in view of Article 163 (7) of the Constitution which provides that ‘All courts, other that the Supreme Court, are bound by the decisions of the Supreme Court.” Moreover, this cross-petition did not comply with Rule 15 (3) of the Mutunga Rules which speaks to a respondent filing a cross-petition; and it was also not in conformity with Rule 10 (2) of these Rules. Rule 10(3) cannot also be invoked as the replying affidavit of the interested party does not fit any of the descriptions contained therein.”

14. Thus until the interested parties are made parties, the court cannot handle their applications.

15. There is another document filed by one Fanuel Ogbo Ghebre Michael, who stated to be a director of HB Brothers. They refute claims plaintiff’s case in regarding to the cargo of H B Brothers General Trading.

16. There is a similar affidavit by Bereket Asetafaw Habte, a director of DHMO General Trading Company.

17. Abdiwahid Haji Yerrow filed a replying affidavit stating on behalf of the Plaintiff that: -a.Proposed parties have filed Constitutional Petition No. E002 of 2023. b.They state that this matter was nothing to do with the Nairobi petitionc.To them it is purely a commercial loss of business due to the defendant’s interference.d.They mentioned the Nairobi petition as it was the excuse that the Defendant was using of interfering with their business. They state that they have properly impleaded the Defendant.

18. The plaintiff filed submission to the application dated 14/9/23. They rely on order 1 Rule 10 (2) which provides as following: -10. Substitution and addition of parties [Order 1, rule 10. ](1)Where a suit has been instituted in the name of the wrong persons as plaintiff, or where it is doubtful whether it has been instituted in the name of the right plaintiff, the court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute to do so, order any other person to be substituted or added as plaintiff upon such terms as the court thinks fit.(2)The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually.

19. They also rely on the case of Skov Estate Limited & 5 others v Agricultural Development Corporation & another [2015] eKLR, where Justice Munyao stated as doth:-“18. In my view, for one to convince the court that he/she needs to be enjoined to the suit as interested party, such person must demonstrate that it is necessary that he/she be enjoined in the suit, so that the court may settle all questions involved in the matter. It is not enough for one to merely show that he/she has a cursory interest in the subject matter of litigation. Litigation invariably affects many people. A judgment or order in most cases does not only affect the litigants in the matter. It does have ramifications for others as well and one may very well argue that these others have an interest in the litigation. That is a fair argument, but a mere interest, without a demonstration that the presence of such party will assist in the settlement of the questions involved in the suit, is not enough to entitle one be enjoined in a suit as interested party. In other words, there needs to be a demonstration that the interest of the person goes further than “merely being affected" by the judgment or order. It must be shown that the presence of that person is necessary, so that the issues in the suit may be settled, and that if the person is not enjoined, the court may not be fully equipped to settle the questions in the suit or may be handicapped in one way or another. A joinder may also be allowed if the intended interested party has a claim of his own, which in the circumstances of the matter, needs to be tried, or is convenient to be tried alongside the claims of the incumbent plaintiff and defendant. The threshold for joinder of an interested party should not be too low, or else, this is prone to open doors for busybodies to be joined to proceedings, merely to spectate or confuse the issues in the matter. Apart from the above, whether or not to enjoin a person as an interested party, must be looked at within the context and surrounding circumstances of each particular case.”

20. They state that the application should be dismissed.

21. The defendant filed grounds of opposition dated 29/9/2020. They replied to the application dated 18/9/2023. The same is yet to be heard. They also filed grounds if opposition dated 29/9/2023. They state the application should be struck out for being an abuse of the court process.

22. They also state there. They have failed to annex a draft defence. They state that the application is bound to delay the suit. They also filed a replying affidavit to the application dated 7/9/23 which is yet to be heard. In that affidavit they state that the proceedings herein may be sub judice.

23. The provisions of Section 6 of Civil Procedure Act defines the doctrine of sub judice as follows;‘‘…….. No court shall proceed with the trial of any suit or proceedings in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties or between parties under whom they or any of them claim litigating under the same title, where such suit or proceeding is pending in the same court or any other court having jurisdiction in Kenya to grant the relief claimed.’’

24. The law on subjudice was succinctly set out in the case of Kinatwa Co-operative Savings & Credit Society Limited v Kinatwa Prestige Ltd [2021] eKLR as follows: -That issue is exactly the same issue before this court and hence the similarity in the reliefs sought in the two suits. I am not persuaded by the Respondent’s counsel that the suits are distinct and different. They are similar. A determination of either of them, will obviously render the other spent and of no further use. The law requires that in a situation such as this, a subsequent suit is stayed under Section 6 of Civil Procedure Act because of the rule of Res sub-judice. In the case of Kenya Bankers Association v Kenya Revenue Authority,2019 eKLR the court had this to say on the issue of Res sub judice;‘‘in addition, it is clear that the maters in issue in the suits or proceedings are directly and substantially the same. The parties in the suits or proceedings are the same. The ex parte applicant herein, is litigating on behalf of its 47 members, some of whom are parties in the existing suits. The suits are pending in the High Court which has jurisdiction to grant the relied claimed.A cursory look at the prayers sought in this case show that they relate to the same subject matter. However, the principle of sub judice does not talk about the ‘‘prayers sought’’ but rather ‘‘the matter in issue’’ I find that the matters in issue in the suits are substantially the same. In Re the matter of the Interim Independent Electoral Commission, the Supreme Court cited with approval the Australian decision where it was held: -‘‘…. we do not think that the word ‘‘matter’’ …means a legal proceeding, but rather the subject matter for determination in a legal proceeding. In our opinion there can be no matter…unless there is some right, duty or liability to be established by the determination of the court…’’31. The rationale behind sub-judice rule is to prevent situation of having conflicting orders emanating from two or more different courts over the same subject matter. That situation has obtained in this instance because, court issued injunctive orders on 22nd April, 2021 unbeknown to it that a different court had issued a conflicting order vide Nairobi Chief Magistrate’s Court Civil Case Number E7816 of 2020, Kinatwa Prestige Limited v Kinatwa Coop Savings and Credit Society Limited & National Transport & Safety Authority & another. That is exactly the mischief Section 6 of the Civil Procedure Act is supposed to cure by providing for a stay of suit or proceedings. In the case of David Ndii & others v Attorney General & Others 2021 eKLR, a bench of five Judges inter alia stated;‘‘The rationale behind this provision (Section 6 of the Civil Procedure Act) is that it is vexatious and oppressive for a claimant to sue concurrently in two courts. Where there are two courts faced with substantially the same question or issue, that question or issue should be determined in only one of those courts, and the court will….’’

25. The proposed applicant filed submissions dated 5/10/2023. In their submissions, they not only argue their application, but argue another prayer, that the matter be transferred to Nairobi. I shall not deal with applications other than joinder of the proposed 2nd and 3rd Respondents.

26. They state that there is an order in place in Milimani HCCCOM Petition No. E002 of 2023. They cover both the applications dated 14/9/2023 and 18/9/2023. I shall not deal with the application dated 18/9/2023. They rely on Order 1 Rule 10 (1) of the Civil Procedure Rule. They also rely on the decision in Nyongesa & Others v Egerton [1990] eKLR, as regard to being condemned unheard.

27. Further, they rely on the case of Mumo Maleh & SKOV Estates Ltd & 5 Others. It is their case that under order 1 Rule 7 any party with an interest in the case shall be joined.

Analysis 28. This is a fairly straight forward matter without going into the merit of the case, does the applicant have sufficient interest is the case, to warrant being joined to the case. I will have the question slipped. If both this suit and the one in Nairobi are heard to the conclusion, and both allowed, is there a possibility of each deciding on the same legal right. The question in this is the right of responsibility to clear and warehouse, cargo going to South Sudan. Both parties have a known interest in this area. A party sued not be interested in the entire claim.

29. Under order 1 Rules of the Civil Procedure Rules, party may be joined if they have an identifiable interest. If provides as doth:-“5. Defendant need not be interested in all relief claimedIt shall not be necessary that every defendant shall be interested as to all the relief claimed in any suit against him.”

30. So far I am satisfied that at least the Defendant does not deal with cargo in times of actual business. It cannot divert clearance and warehousing to itself. Consequently, both parties are saying the same thing? That business is either acquired or diverted, depending on who you ask. It is thus necessary to have the second/3rd defendant in the case to be able to defend their interests. It is not enough to have them as interested parties. I find that the application is merited. Given the acrimony, I note parties may not wait for the amendment to lapse. As usual I shall attach penal consequences for compliance.

31. The plaintiff shall amend the plaint to include the 2nd and 3rd defendant within 15 days, failing which the suit shall stand struck out for non compliance.

32. The Court shall give directions on other applications after ruling.

Determination 33. The application dated 14/9/2023 is allowed in the following terms:-a.Leave is granted to Autoports Nairobi Freight Terminal Ltd and Compact Freight System Ltd. to be joined as the 2nd and 3rd defendants.b.To enable compliance, the plaintiff shall amend its plaint to include the 2nd and 3rd defendants who have been joined herein, within 15 days, failing which the suit shall stand, on the 16th days dismissed with cost to all the defendants.c.Costs shall be in the cause.d.The Court shall issue directions after the Ruling.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 15TH DAY OF NOVEMBER, 2023. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:Mr. Nzamsa for the PlaintiffMr. Amakobe for PlaintiffMr. Kinyanjui for Mr. Gikandi for interested parties.Court Assistant - Brian