[2024] KEHC 7396 (KLR)

MKA v NKA aka NAC (Civil Appeal E121 of 2023) [2024] KEHC 7396 (KLR) (Family) (20 June 2024) (Ruling)

Neutral citation: [2024] KEHC 7396 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Civil Appeal E121 of 2023

HK Chemitei, J

June 20, 2024

Between

MKA

Appellant

and

NKA aka NAC

Respondent

Ruling

1. This ruling relates to the application dated 24th February, 2024 filed by the Appellant, MKA; seeking Orders That:(a)There be a stay of proceedings and/or further proceedings or hearing and/or any action in Divorce Cause No. E099 of 2023 pending the hearing and determination of the Appeal against the Ruling delivered on 16th October, 2023. (b)The costs of this Application be provided for.(c)Such other or further relief that this Honourable Court may deem fit and just to grant.

2. The application is supported by affidavit sworn by MKA on 27th February, 2024. He states inter alia that after being served with the petition dated 25th July, 2023 in Divorce Cause No. E099 of 2023 by the Respondent, he instructed the Firm of Messrs. Tariq Khan & Associates to defend him. Upon perusing the petition, his advocates filed a notice of preliminary objection dated 21st August, 2023 objecting to among other things the jurisdiction of the trial court to hear and determine the petition.

3. On 16th October, 2023, the trial court in Divorce Cause No. E099 of 2023 delivered a ruling and dismissed the preliminary objection dated 21st August, 2023. Being dissatisfied with the ruling of the court, he instructed his advocates to lodge the instant appeal. Vide a letter dated 1st November, 2023, his advocates on record requested for certified copies of the ruling and typed proceedings for purposes of preparing the record of appeal, however, the same are yet to be furnished to his advocates.

4. On 7th November, 2023 his advocates on record filed an application before Hon Kadhi seeking for a stay of proceedings in Divorce Cause No. E099 of 2023. This application was dismissed vide ruling delivered on 9th February, 2024. He deponed that he has good grounds of appeal that stand a chance of success. However, if the proceedings in Divorce Cause No. E099 of 2023 continue the Appeal will be rendered nugatory.

5. He deponed that he was apprehensive that the trial court lacks the jurisdiction to hear and determine the petition filed before it and that if the proceedings in Divorce Cause No. E099 of 2023 continue, he has reasonable and justifiable apprehension that there will be a miscarriage of justice since jurisdiction is everything. He believes that this is a proper case for the exercise of the court’s discretion as prayed for.

6. NKA aka NAC has filed a replying affidavit sworn on 6th March, 2024 objecting to the application. She avers inter alia that the application is an attempt by the applicant to continually deny her the right of audience to what she is entitled to, and an effort by him to continually benefit from unjust enrichment by holding on to items she toiled for.

7. She accused the applicant of using is a delaying tactic to ensure that the Kadhi’s Court Divorce Cause No. E099 of 2023 matter does not proceed to full trial contrary to the overriding objectives guiding this honorable court. That the ruling delivered on the applicant’s notice of preliminary objection by the Kadhi’s Court on 16th October, 2023 is sound and well considered and thought of.

8. Staying the proceedings at the Kadhi’s Court will be detrimental to her as the prolonged duration of this cause puts her in a more precarious situation. The instant application is aimed at prolonging and wasting judicial time and it has not satisfied the required test for stay of proceedings. The intended appeal raises no serious issues of law and that the appellant would not suffer irreparable harm if the matter proceeds to full trial at the trial court.

9. She further accused the appellant of not committing to pay any security into court in the event the orders for stay are granted. She further stated that in the unlikely event that this court grants the orders for stay of the proceedings in the Kadhi’s court matter as prayed, she urges this court to require the appellant to furnish into court security of Kshs. 1 million.

10. Both parties have not filed submissions on the application.

Background 11. The genesis of this application is the ruling delivered by Hon. S. H. Omar (DCK.) on 16th October, 2023 dismissing the preliminary objection dated 25th July, 2023.

12. The preliminary objection dated 25th July, 2023 was based on the grounds that the petition is against overriding objectives as set out in Article 159 of the Constitution of Kenya, 2010 and Section 3A of the Civil Procedure Act. That having determined the issues in the petition on 13th March, 2023 in KCDC E119/ 2022, the trial court was functus officio.

13. By dint of Section 5 of the Kadhis Court Act, the trial court lacks jurisdiction to entertain the issue of alleged contract between the parties and that the alleged contract contravenes the provisions of Section 4 of the Limitation of Actions Act. That the petition is bad in law as it contravenes the provisions of Section 7 of the Civil Procedure Act hence it violates the doctrine of res judicata because as clearly admitted by the petitioner in her averment in paragraph 5 of the petition, all issues raised in the petition are directly and substantially in issue in the previous petition KCDC E119 of 2022 which was withdrawn and therefore the entire suit is misconceived, frivolous, devoid of merit, mala fide and an abuse of the court process.

Analysis and Determination 14. I have carefully considered the application before this court and the response thereto.

15. In Turbo Highway Eldoret Ltd v Muniu (Civil Appeal E040 of 2021) [2022] KEHC 10197 (KLR) (30 June 2022) (Ruling) the court stated as follows:“18. In William Odhiambo Ramogi & 2 Others v the Honourable Attorney General & 3 Others [2019] eKLR, a 5-judge Bench of the High Court, after looking at our jurisprudential scan on the question of stay of proceedings, authoritatively laid out the principles our Courts have established for the grant of stay of proceedings pending the hearing and determination of an appeal over an interlocutory application to a higher Court. See: Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] eKLR; Global Tours & Travels Limited (Nairobi HC Winding Up Cause No. 43 of 2000); David Morton Silverstein v Atsango Chesoni [2002] eKLR: They laid down the following six principles:a.First, there must be an appeal pending before the higher Court;b.Second, where such stay is sought in the Court hearing the case as opposed to the higher Court to which the Appeal has been filed and there is no express provision of the law allowing for such an application, the Applicant should explain why the stay has not been sought in the higher Court. This is because, due to the potential of an application for stay of proceedings to inordinately delay trial, there is a policy in favour of applications for stay being handled in the Court to which an appeal is preferred because such a Court is familiar with its docket and is therefore in a position to calibrate any order it gives accordingly;c.Third, the Applicant must demonstrate that the appeal raises substantial questions to be determined or is otherwise arguable;d.Fourth, the Applicant must demonstrate that the Appeal would be rendered nugatory if the stay of proceedings is not granted;e.Fifth, the Applicant must demonstrate that there are exceptional circumstances which make the stay of proceedings warranted as opposed to having the case concluded and all arising grievances taken up on a single appeal; andf.Sixth, the Applicant must demonstrate that the application for stay was filed expeditiously and without delay.

19. All these factors must be considered, in a given case, in the spirit concisely expressed in Halsbury’s Laws of England, 4th Edition, Vol. 37 at p. 330:The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the Court’s general practice is that a stay of proceedings should not be imposed unless the proceedings, beyond reasonable doubt, ought not to be allowed to continue….This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases…It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show not merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of this case.

21. In short, a stay of proceedings is a radical remedy which is only granted in very exceptional circumstances. In the words of Ringera J. in Global Tours & Travels Limited (Nairobi HC Winding Up Cause No. 43 of 2000): As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of Justice.....the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously (emphasis added)

22. What emerges from the discussion above is that the grant of a stay of proceedings pending the hearing of an interlocutory appeal in civil matters is a rare and exceptional remedy.

23. As a general matter, an appellate court will only exercise its discretion to grant a stay of proceedings pending an appeal over an interlocutory matter before a magistrate’s Court or Tribunal only in exceptional circumstances. While difficult to determine with mathematical precision when the Court will use this power, it is only to be sparingly used where, in the words of South African authors, Gardiner and Lansdown (6th Ed. Vol. 1 p. 750), “grave injustice might otherwise result or where justice might not by other means be attained.” As the authors correctly write, the Court will generally “hesitate to intervene, especially having regard to the effect of such a procedure upon the continuity of proceedings in the Court below.”

24. Hence, the propriety of granting a stay of proceedings pending an appeal over interlocutory matters is decided on the facts of each case and with “due regard to the salutary general rule that appeals are not entertained piecemeal.” (Walhaus & Others v Additional Magistrate, Johannesburg & Another, 1959 (3) SA 113(A) at 120D; S. v Western Areas Ltd & Others 2005 (5) SA 214 (SCA) at 224D…”

16. The Applicant’s main issues in contention are that:a.The issues pleaded in the petition were pleaded in their divorce cause before the Kadhi’s Court. A reading of the ruling delivered on 16th October, 2023 indicates that the issues touching on matrimonial property, though pleaded in the divorce cause, were withdrawn before the judgment on the divorce was delivered. As such, according to Hon. S. H. Omar, they do not fall under res judicata because they were not decided upon.b.The applicant also avers that the finding by Hon. S. H. Omar that the loan of Kshs. 2, 250, 000/= taken by both parties during the pendency of their marriage to buy their son a car, passes for a contract and that it was not reduced into writing because it was based on trust by virtue of them being married to each other; is time barred by virtue of the statute of limitations act.

17. In Wamanda & 2 others v Egoli Estateds Limited & another (Environment and Land Case Civil Suit 103 of 2020) [2024] KEELC 1416 (KLR) (14 March 2024) (Ruling) the courts stated as follows:“13. In the case of John Florence Maritime Services Limited & another vs Cabinet Secretary Transport & Infrastructure & 3 Others (Petition 17 of 2015) [2021] KESC 39 (KLR) (Civ) (6 August 2021) (Judgment), the Supreme Court delved into an in-depth discussion of the concept of res judicata thus; “This court in the case of Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & another Motion No 42 of 2014 [2016] eKLR (Muiri Coffee case) held as follows regarding the doctrine of res judicata: "Res judicata is a doctrine of substantive law, its essence being that once the legal rights of parties have been judicially determined, such edict stands as a conclusive statement as to those rights. It would appear that the doctrine of res judicata is to apply in respect of matters of all categories, including issues of constitutional rights. Such a perception has a basis in comparative jurisprudence; in the Ugandan case of Hon Norbert Mao v Attorney-General, Constitutional Petition No 9 of 2002; [2003] UGCC3, the petitioner brought an action on behalf of 21 persons from his constituency, for declarations under article 137 of the Uganda Constitution, and for redress under article 50 of that Constitution. The matter arose from an incident in which officers of the Uganda Peoples Defence Forces attacked a prison, and abducted 20 prisoners, killing one of them. Unknown to the petitioner, another action had already been filed under article 50, seeking similar relief; and Judgment had been given in Hon Ronald Reagan Okumu v Attorney-General, Misc Application No0063 of 2002, High Court HCT 02 CV MA 063 of 2002. The Constitutional Court dismissed the petition, on a plea of res judicata, declining the petitioner’s pleas that certain important constitutional declarations now sought, had not been accommodated in the earlier Judgment. In Silas Make Otuke v Attorney-General & 3 others, [2014] eKLR, the High Court of Kenya agreed with the Privy Council decision in Thomas v The AG of Trinidad and Tobago (1991) LRC (Const) 1001, in which the Board was “satisfied that the existence of a constitutional remedy as that upon which the appellant relies does not affect the application of the principle of res judicata”.54. The doctrine of res judicata, in effect, allows a litigant only one bite at the cherry. It prevents a litigant, or persons claiming under the same title, from returning to court to claim further reliefs not claimed in the earlier action. It is a doctrine that serves the cause of order and efficacy in the adjudication process. The doctrine prevents a multiplicity of suits, which would ordinarily clog the courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively. It emerges that, contrary to the respondent’s argument that this principle is not to stand as a technicality limiting the scope for substantial justice, the relevance of res judicata is not affected by the substantial-justice principle of article 159 of the Constitution, intended to override technicalities of procedure. Res judicata entails more than procedural technicality, and lies on the plane of a substantive legal concept.56. The learned authors of Mulla, Code of Civil Procedure, 18th Ed 2012 have observed that the principle of res judicata, as a judicial device on the finality of court decisions, is subject only to the special scenarios of fraud, mistake or lack of jurisdiction (p 293):The principle of finality or res judicata is a matter of public policy and is one of the pillars on which a judicial system is founded. Once a Judgment becomes conclusive, the matters in issue covered thereby cannot be reopened unless fraud or mistake or lack of jurisdiction is cited to challenge it directly at a later stage. The principle is rooted to the rationale that issues decided may not be reopened and has little to do with the merit of the decision.” The essence of the res judicata doctrine is further explicated by Wigram, V-C in Henderson v Henderson (1843) 67 ER 313, as follows:… where a given matter becomes the subject of litigation in, and 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 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 cases, 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” [emphasis supplied].Hence, whenever the question of res judicata is raised, a court will look at the decision claimed to have settled the issues in question; the entire pleadings and record of that previous case; and the instant case to ascertain the issues determined in the previous case, and whether these are the same in the subsequent case. The court should ascertain whether the parties are the same, or are litigating under the same title; and whether the previous case was determined by a court of competent jurisdiction. This test is summarized in Bernard Mugo Ndegwa v James Nderitu Githae & 2 others, (2010) eKLR, under five distinct heads: (i) the matter in issue is identical in both suits; (ii) the parties in the suit are the same; (iii) sameness of the title/claim; (iv) concurrence of jurisdiction; and (v) finality of the previous decision. That courts have to be vigilant against the drafting of pleadings in such manner as to obviate the res judicata principle was judicially remarked in ET v Attorney-General & another, (2012) eKLR, thus: 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 a form of a new cause of action which has been resolved by a court of competent jurisdiction. In the case of Omondi v National Bank of Kenya Limited and 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, in the case of Njangu v Wambugu and another Nairobi HCCC 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 on every occasion he comes to court, then I do not see the use of the doctrine of res judicata.”

18. In light of the foregoing, i do not find at this level any reason to grant the applicant the orders prayed for. Prima facie and based on the pleadings before this court i am not satisfied that the issue is res judicata. Neither do i find any reason to disturb the ruling by the trial court based on the preliminary objection.

19. All is not lost to the applicant as the matter will still undergo a full trial and the parties will be able to raise the issues bedeviling them including matrimonial properties or any other issue.

20. If in any case one of them is dissatisfied with the judgement of the honorable Kadhi then this court will still be in a position to deal with any appeal.

21. Suffice to state that the Applicant has not satisfied the provisions of Order 42 rule 6 of the Civil procedure rules and the application is thus dismissed. Costs shall await the outcome of the appeal.

DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAIROBI THIS 20THDAY OF JUNE 2024. H K CHEMITEIJUDGE