[2024] KEHC 2471 (KLR)

Mukuha v Gashwe (Being sued in his capacity as administrator of the Estate of Simon Gashwe Mukuha (Deceased) & another (Civil Suit 475 of 2013) [2024] KEHC 2471 (KLR) (Commercial and Tax) (8 March 2024) (Ruling)

Neutral citation: [2024] KEHC 2471 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts)

Commercial and Tax

Civil Suit 475 of 2013

FG Mugambi, J

March 8, 2024

Between

Newton Kagira Mukuha

Plaintiff

and

Charles Mukuha Simon Gashwe (Being sued in his capacity as administrator of the Estate of Simon Gashwe Mukuha (Deceased)

1st Defendant

David Kimani

2nd Defendant

Ruling

1. For determination is the plaintiff’s Notice of Motion application dated 25th July 2023 filed pursuant to Order 16 rule 1, Order 40 rule 1, 2 and 3, Order 42 rule 6, Order 51 rule l of the Civil Procedure Rules, Sections 1A, 1B, 3A, 6 and 63 (e) of the Civil Procedure Act and Articles 10, 21, 22, 25 (a), 40, 50 (1), 159 of the of the Constitution.

2. The dispute relates to shareholding rights by family members in Naivas Limited. The applicant alleges that he is a beneficial owner having contributed 20% of its start-up capital in 1990. At the time the family business was operating as Rongai Self Service Store.

3. The application seeks the following orders:i.Spent.ii.That the Honourable Court be pleased to defer the proceedings of this matter until hearing and determination of Civil Appeal No. 204 of 2016 in the Court of Appeal at Nakuru and Nakuru High Court Succession Cause No. 92 of 2011. iii.That the Honourable Court be pleased to grant leave to the Plaintiff/Applicant to file additional evidence in support of his case.iv.That the Honourable Court be pleased to issue temporary injunction restraining the Defendants/Respondents either by themselves, servants, employees and/or authorised agents or whosoever from alienating, disposing, interfering, charging, selling the shares and properties of Naivas Limited, doing anything prejudicial to movable and immovable properties, bank accounts and/or in any other manner from interfering with the current shareholding and status of the Company and/or interfering with money and assets held by Naivas Limited until Hearing and determination of Civil Appeal No. Court 204 of 2016 in the Court of Appeal at Nakuru and Nakuru High Court Succession Cause No. 92 of 2011. v.That the Honourable Court be pleased to issue an order restraining the Defendants/Respondents either by themselves, servants, employees and/or authorised agents or whosoever from alienating, disposing, interfering, charging, selling the shares and properties of Naivas Limited, doing anything prejudicial to movable and immovable properties, bank accounts and/or in any other manner from interfering with the current shareholding and status of the Company and/or interfering with money and assets held by Naivas Limited until Hearing and determination of Civil Appeal No. Court 204 of 2016 in the Court of Appeal at Nakuru and Nakuru High Court Succession Cause No. 92 of 201 l.vi.That the Honourable court be pleased to issue any such further orders that it deems fit and convenient. THAT the cost of this application be in the cause.vii.That this honourable do issue any other orders it deems fit and convenient taking all the circumstances of this case into account.

4. The applicant contends that an order for stay of proceedings is necessary as he has an arguable appeal filed in Civil Appeal No. Court 204 of 2016 with high chances of success which would be rendered nugatory if the stay is not granted. Further he argues that there is also another case, Nakuru High Court Succession Cause No. 92 of 2011 which is pending hearing and determination of an application to enjoin him in his capacity as the administrator of the estate of Peter Mukuha Kago, his late father.

5. The applicant asserted that he would suffer irreparable damage if the proceedings herein are not stayed until the determination of the aforementioned cases.

6. The defendants opposed the application through grounds of opposition dated 15th October 2023 and a replying affidavit sworn on 24th October 2023 by the 2nd respondent. As far as they are concerned, the application is res judicata, as the applicant had filed similar applications in Nakuru Succession Cause No. 92 of 2011; In the Estate of Peter Mukuha Kago (Deceased).

7. On 10th July 2012, the plaintiff filed a motion application dated 9th July 2013 seeking essentially the same orders as the summons of 2nd November 2012. By a ruling dated 31st October 2014, this Court (Emukule, J), dismissed the two applications with costs.

8. Even in the instant suit, the respondent pointed out that the applicant had by way of three (3) applications dated 31st October 2023, sought an injunction to restrain the 1st and 2nd defendants from interfering with the shares and other assets in respect of Naivas Limited. A ruling was delivered again by this Court (G.L Nzioka, J) on 14th November 2016 dismissing all the three (3) applications. The plaintiff appealed against the decision and the Court of Appeal dismissed the appeal.

9. The defendants averred that the four (4) applications filed thus far, three (3) in the instant case, and one in Nakuru Succession Cause No. 92 of 2011 all sought for an injunction orders prohibiting dealings in Naivas Limited shares, bank accounts and/ or immovable property and these are the same orders sought in the instant application. The applications were determined by courts of competent jurisdiction and the instant application is inviting the court to determine an issue that has already been dealt with.

10. In his defence the applicant contends that the application filed in Nakuru Succession Cause No. 92 of 2011 was necessary to protect and preserve the assets forming part of the deceased estate pending the determination of the succession cause and therefore the said application cannot be said to be res judicata in the circumstances. The applicant averred that the proceedings before the appellate court in Civil Appeal No.204 of 2016 would determine among other things, whether the applicant has equitable rights in the ownership of Naivas Ltd, which is also a substantive question before the trial court.

11. The respondents further contend that the ground on which the applicant seeks the injunction, which is that he has a meritorious case in both Nakuru Civil Appeal No. 204 of 2016 and in Nakuru Succession Cause No. 92 of 2011, is not substantiated. This is because this court does not have the benefit of assessing whether or not the applicant has arguable cases in those cases owing to the fact that they have been filed in different forums.

12. In any case, the respondents argue that the Court of Appeal in Civil Appeal No. 204 of 2016 already granted an interim order that the status quo with regards the shares in dispute in Naivas Limited be maintained pending the determination of the appeal. This was on 25th November 2021. As such, applicant’s prayer seeking to maintain the status quo cannot issue as it has already been granted by another court.

13. On deferring the proceedings in this suit pending determination of Court of Appeal in Civil Appeal No. 204 of 2016 and Nakuru Succession Cause No. 92 of 2011 the respondents assert that proceedings can only be stayed in a matter if there is another matter that has been filed in a different court and whose outcome would have a direct bearing on the matter sought to be stayed. The applicant had not shown the relationship between the two suits and the instant one.

Analysis 14. The priority issue for determination is whether the application before Court is indeed res judicata. Section 7 of the Civil Procedure Rules states that:“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.”

15. A cursory look at the record confirms the averments made by the respondents. The following applications had been filed by the applicant and determined; In Nakuru Succession Cause No.92 of 2011 the applications dated 2nd November 2012 and 9th July 2013 seeking temporary injunctions to restrain Simon Gashwe Mukuha (deceased) from interfering with Naivas Ltd shares owned by Peter Mukuho Kago (deceased). They were both dismissed on 31st October 2014.

16. The record further confirms that indeed the applicant filed the applications dated 31st October 2013, 11th December 2014 and 13th May 2016. He similarly sought injunctions restraining the 1st and 2nd defendants from interfering with the shares of Naivas Limited. This Court once again dismissed all 3 applications on 14th November 2016.

17. The respondents have also attached the ruling in Milimani Civil Appeal No. 39 of 2017; Mukuha v Naivas Limited & 2 Others 2021. This was the outcome of an appeal filed by the applicant against the aforementioned ruling. The Court of Appeal found no merit in the appeal and dismissed the same.

18. I take note that the applications filed by the applicant were against similar parties, seeking similar orders and in substantially similar matters. As such, the injunction relief sought in the instant application violates the principle of res judicata as stipulated under section 7 of the Civil Procedure Act.

19. The second issue for determination is whether a stay of proceedings ought to be granted in this matter. In the case of Kenya Wildlife Service v James Mutembei [2019] eKLR, the Court was held that:“… 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 proceeding beyond all reasonable doubt ought not to be allowed to continue.”

20. The onus is upon the applicant to illustrate to this court beyond reasonable doubt that proceedings in this matter ought to be halted pending the determination of the two cases as averred. For proceedings to be stayed in a matter where there is another matter that has been filed in a different court, the applicant should have demonstrated to this Court how the outcomes in the other matters have a direct bearing on the matter sought to be stayed. The applicant has not done so.

Determination 21. The upshot of this is that the application dated 25th July 2023 lacks merit and is dismissed with costs to the respondents.

DATED, SIGNED AND DELIVERED IN NAIROBI THIS 8TH DAY OF MARCH 2024. F. MUGAMBIJUDGE