[2022] KEHC 15072 (KLR)

Mugo & 8 others v Kagaari South Farmers Co- operative Society Ltd & 4 others (Civil Case 4 of 2015) [2022] KEHC 15072 (KLR) (9 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15072 (KLR)

Republic of Kenya

In the High Court at Embu

Civil Case 4 of 2015

LM Njuguna, J

November 9, 2022

Between

Benard Mugo & 8 others

Plaintiff

and

Kagaari South Farmers Co- operative Society Ltd & 4 others

Defendant

Ruling

1. What is for determination is the preliminary objection raised orally in court on October 11, 2022 by the defendants’ advocate wherein he stated that the plaintiffs’ suit runs afoul of the provisions of order 1 rule 13 of the Civil Procedure Rules, 2010, which provides that a plaintiff may represent other plaintiffs but there must be a written and signed authority to support the same. It was his case that the same was never adhered to and as such, there being no filed written authority from the 2nd – 9th plaintiffs for the 1st plaintiff to sign pleadings on their behalf, the names of the 2nd – 9th plaintiffs therefore be expunged from the record.

2. Counsel for the plaintiffs opposed the application arguing that the matter herein started via an interlocutory application and the same has been argued upto the Court of Appeal and that the purpose of a court is to do justice and as such the mistake herein if any, has been occasioned by the counsel and the same should not be visited upon the litigants herein. It was his case that the same could be rectified via an amendment given that the law allows for amendment and therefore, leave was sought to amend the same. He reiterated that the oral application by the defendants seeking to strike out the 2nd – 9th plaintiff’s pleadings was unfair.

3. The court directed that the objection be canvassed by way of written submissions and the parties herein complied with the said directions.

4. The plaintiffs submitted that the preliminary objection raised by the defendants had been previously raised and dealt with conclusively by this court. That the same was dealt with by Muchemi J via a ruling delivered on July 25, 2016 and therefore, given that the court had previously heard both parties and pronounced itself on the same, the application herein should thus be dismissed.

5. The defendants in their submissions reiterated their oral submissions made on October 11, 2022 before the court and further submitted that the pleadings in question are defective for want of authority from the 2nd to 9th plaintiffs. The applicants relied on the cases Peter Kitelo & others v County Government of Bungoma & another, ELC Case No 10 of 2020; James Ndugi & 4 others v Jamleck Waithaka Kinyua & 7 others to support their contention.

6. I have considered the application herein, the reply by the plaintiffs and further the written submissions by both parties and I find that the main issue for determination is whether the objection is merited.

7. Perhaps, it is necessary to reproduce the provisions of order 1 rule 13 (2) of the Civil Procedure Rules, 2010, to appreciate and to understand the import and tenor thereof. For clarity, the said provision states as hereunder:-13. Appearance of one of several plaintiffs or defendants for others (order 1, rule 13. )(1)Where there are more plaintiffs than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding, and in like manner, where there are more defendants than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding.(2)The authority shall be in writing signed by the party giving it and shall be filed in the case.

8. I have perused the record and from the ruling dated July 25, 2016, I note that Muchemi J. adequately dealt with the issue raised by the defendants conclusively. The court noted thus;…..In view of the above Court of Appeal decision and the fact that the 1st applicant stated in paragraph one of the supporting affidavit that he has authority and consent of the 2nd to 9th applicants to swear the affidavit, the respondents’ argument that the affidavit is not proper cannot stand the test laid down in theWilson Mbithi case (supra). However, the authority was later filed and is now part of the court record.

9. In reference to the same, I am guided by section 7 of the Civil Procedure Act on res judicata, which reads as follows: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 provision is on the fundamental doctrine that there should be an end to litigation. The doctrine of res judicata may be pleaded by way of estoppel so that where a judgment has been given, future and further proceedings are estopped. The rationale for the doctrine of res judicata exists to protect public interest so that a party should not endlessly be dragged into litigation over the same issue or subject matter that has otherwise been conclusively determined by a court of competent jurisdiction.

11. In that respect, the Court of Appeal held in The Independent Electoral and Boundaries Commission v Maina Kiai & 5 others, [2017] eKLR), that:[F] or 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.

12. The court went on to state on the role of the doctrine:The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as a pragmatic and commonsensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and fora, to obtain at last, outcomes favourable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute or calumny. The foundations ofres judicata thus rest in the public interest for swift, sure and certain justice.

13. Without belabouring, there is no doubt that the issue raised in the application herein was ably determined by this court though differently constituted via a ruling dated July 25, 2016.

14. This court, will therefore, not spend its limited judicial time in this matter any further. The matter has to come to an end.

15. Consequently, the objection herein is unmerited and the same is dismissed.

16. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 9TH DAY OF NOVEMBER, 2022. L. NJUGUNAJUDGE…………………………………………for the Plaintiffs……………………………………..for the Defendants