[2022] KEHC 16454 (KLR)

Muroki v Attorney General & 3 others (Civil Case 115 of 2010) [2022] KEHC 16454 (KLR) (13 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16454 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Case 115 of 2010

MW Muigai, J

December 13, 2022

Between

Fredrick Muroki

Plaintiff

and

The Attorney General

1st Defendant

Elizabeth Nziva Nthenge

2nd Defendant

Maryanne Mueni Nzioka

3rd Defendant

Alice Mulekyo Nzioka

4th Defendant

Ruling

Pleadings 1. The genesis of the matter pending before this court is the plaint dated June 18, 2010 and amended on December 17, 2019. The plaintiff herein sought the following prayers: -(i) (a)A declaration that the arrest, incarceration and prosecution of the plaintiff by the 1st defendant at the behest of the 2nd, 3rd and 4th defendants was unlawful and malicious.(b)A declaration that the 1st defendant contravened the plaintiff’s right to liberty under section 72 of the former constitution and that he is entitled to redress under section 84 of the former constitution.ii.General damagesiii.Special damagesiv.Costs of this suitv.Interest at court rates on (ii, iii & iv) above.

Notice of motion 2. The 4th defendant/applicant herein filed an application dated July 20, 2022 and sought the following orders;-i.That court be pleased to strike out the plaintiff’s suit in its entirety.ii.That cost of the application be provided.

3. The application is supported by the supporting affidavit sworn by Alice Mulekyo Nzioka (4th defendant) stating that videa plaint dated June 18, 2020 the plaintiff herein filed suit against the defendants for malicious prosecution seeking orders among which a declaration that the arrest, incarceration and prosecution against the plaintiff was unlawful and malicious.

4. The suit stems from criminal charges in which the 2nd defendant who is now deceased was the complainant and it is trite law that criminal cases and/or charges do not survive the life of deceased; that the plaintiff herein failed to issue the mandatory statutory notice to the 1st defendant contrary to order 1 rule 16 of Civil Procedure Rules; that the suit is materially defective and offends the provisions of Public Authorities Limitation Act more specifically section 3(1) as it was instituted way past the statutory limit of 12 months within which to bring proceedings against the 1st defendant and that the suit is scandalous, frivolous, vexations an abuse of the court process as it discloses no reasonable cause of action against the 4th defendant as she was not the complainant in the criminal case.

Replying affidavit 5. The plaintiff/respondent sworn an affidavit on 31st October deposing as follows: - that though the 4th defendant claims that the 2nd defendant is deceased no death certificate or obituary has been placed before the court. By notice of motion dated July 2, 2018 he applied for leave to amend his plaint and he subsequently filed his amended plaint herein dated December 17, 2019 which has been already served to the defendants.

6. That the suit before this court is a not a criminal case but rather a civil suit and the standards that are applied to criminal cases do not automatically apply to civil suits; that the issue of whether the suit was instituted outside the 12 months limit will be determined at the full hearing of the suit.

Written Submissions 4th defendant/applicant’s submissions 7. It is submitted that on whether criminal cases and/or charges survive the life of the deceased it is submitted that criminal charges do not outlive and/or survive any party to the suit.

8. Section 2 (1) of the Law Reform Act provides that:-“subject to the provisions of this section, on the death of any person after the commencement of this act, all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate, provided that this subsection shall not apply to causes of action for defamation.....”

9. The instant suit arose from tort of malicious prosecution hence cannot survive.

10. On whether the suit is time barred it is submitted that section 4(2) of the Limitation of Actions Act provides;“An action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued:Provided that an action for libel or slander may not be brought after the end of twelve months from such date.”

11. It the case of Drummond Jackson vs Britain medical Association [1970] 2WLR 688 defines a cause of action as;“A cause of action is an act on the part of the defendant, which gives the plaintiff his cause of complaint. Therefore, what the Plaintiff needed to show was that he had a prima facie case against the defendants”

12. On whether the plaintiffs suit against the 4th defendant has met the threshold for malicious prosecution in the case of Murunga vs Attorney General [1979] KLR 138 the principles that govern a claim founded on malicious prosecution were laid down by Cotran J as followsa.The plaintiff must show that prosecution was instituted by the defendant, or by someone -b.that the prosecution terminated in the plaintiffs’ favourc.that the prosecution was instituted without reasonable and probable cause; andd.that it was actuated by malice.

13. In all the above mentioned principles the plaintiff did not proof his case on a balance of probabilities and as such should be dismissed.

Plaintiffs submissions 14. It is submitted that the power to strike out suit is vested in the court by order 2 rule 15 CPR 2010. The court retains the discretion to strike out a plaint if it discloses no cause of action and to strike out a defence if it discloses no reasonable defence or to order their amendment.

15. In the case of Drummond Jackson vs Britain Medical Association [1970] 2WLR 688 at pg 616 defined a cause of action as;“A cause of action is an act on the part of the defendant, which gives the plaintiff his cause of complaint. Therefore, what the plaintiff needed to show was that he had a prima faciecase against the defendants......”

16. The plaintiff submits that the application herein seeks to shut out the plaintiff/respondent from accessing justice, which is fundamental rights under article 48 of the Constitution. The article reads as follows:-Article 48“The state shall ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not impede access to justice.”

17. On the issue of where the entirety of a suit abates when one of several defendants dies?In the case of Ambrose Matogo vs Benedict M Lemisi & 2 others [2020] eKLR the court went over the provisions of order 24 of the Civil Procedure Rules as they provide for the abatement of suits. rule 1 states as follows:(the death of a plaintiff or defendant shall not cause the suit to abate if the cause of action survives or continues”In the same suit at par 22 the court concluded as follows;-22. it is clear that where a suit ordinarily survives a deceased person, the same shall abate in the absence of an application by the legal representative.

18. On whether the plaintiff was required to issue a third party notice to the 1st defendant under order 1 rule 6 of the Civil Procedure Rules the answer is in the negative.

19. Order 1 rule 16 reads as follows:-“Notwithstanding anything in rule 15, leave to issue a third party notice for service on the government shall not be granted unless the court is satisfied that the government is in possession of all such information as it reasonably requires as to the circumstances in which it is alleged that the liability of the government has arisen and as to the departments and officers of the government concerned.”

20. In the instant case the defendants to this suit are not third parties who need to be enjoined. They have been rightly sued as persons who have wronged the plaintiff.

Determination 21. This court has been tasked to determine whether to strike out the suit or not for the grounds raised in the instant application filed on October 11, 2022 dated on July 20, 2022.

22. Striking out of the plaintiff’s suit in it’s entirety is provided for by Civil Procedure Rules order 2 rule 15 CPR2010 as follows;(1)At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that—(a)it discloses no reasonable cause of action or defence in law; or(b)it is scandalous, frivolous or vexatious; or(c)it may prejudice, embarrass or delay the fair trial of the action; or (d) it is otherwise an abuse of the process of the court,

23. The jurisprudence on striking out pleadings is settled as evidenced by the land mark case ofDT Dobie & Company Limited vs Muchina 1982 KLR 1 the Court of Appeal;

24. Reasonable cause of action means a cause of action with some chances of success when only the allegations in the plaint are considered. A cause of action is an act on the part of the defendant, which gives the plaintiff his cause of complaint. A pleading will not be struck off /out unless it is demurrable and striking out is only done in the clearest plain and obvious cases and the jurisdiction should be exercised with extreme caution.

25. In Blue Shield Insurance Company Ltd vs Joseph Mboya Oguttu [2009] eKLR restated the principles as follows:“The principles guiding the court when considering such an application which seeks striking out of a pleading is now well settled. Madan J A (as he then was) in his judgment in the case of DT Dobie and Company (Kenya) Ltd vs Muchina (1982) KLR 1 discussed the issue at length and although what was before him was an application under order 6 rule 13 (1) (a) which was seeking striking out a plaint on grounds that it did not disclose a reasonable cause of action against the defendant, he nonetheless dealt with broad principles which in effect covered all other aspects where striking out a pleading or part of a pleading is sought. It was held in that case inter alia as follows:-“The power to strike out should be exercised after the court has considered all facts, but it must not embark on the merits of the case itself as this is solely reserved for the trial Judge. On an application to strike out pleadings, no opinion should be expressed as this would prejudice fair trial and would restrict the freedom of the trial Judge in disposing the case.”

26. Further, in the case of Olympic Escort International Co Ltd & 2 Others vs Parminder Singh Sandhu & Another [2009] eKLR, the Court of Appeal held that for an issue to be triable, it has to be bona fide. The court stated as follows:“It is trite that, a triable issue is not necessarily one that the defendant would ultimately succeed on. It need only be bona fide.”

Court Record 27. The plaintiff filed suit through plaint filed on 18/6/2010 against 1st 2nd 3rd & 4th defendants. The 1st defendant was sued on behalf of the Commissioner of Police in accordance with Government Proceedings Act.

28. The 1st defendant filed defense dated September 5, 2014, 2nd & 4thdefendants filed on 15/9/2014. The plaintiff filed reply to defense on 29/9/2014.

29. The hearing commenced before Hon D K Kemei J on 28/2/2018 when PW1 Fredrick Muroki Grieve testified and was cross-examined by the defendants advocates on record.

30. Thereafter, the plaintiff filed application dated 2/7/2018 seeking leave to amend the plaint and the trial court by ruling delivered on 17/12/2019 the plaintiff was granted leave to amend the plaint and serve.

31. This court took over the matter and on 31/3/2022, the parties/counsel and the court were to await the typed proceedings before taking directions on the way forward.

32. On 6/6/2022, the court was informed that the 2nd & 3rd defendants were/are deceased. The court allowed the defendants to be substituted and/or the suit against them would abate upon production of copy of death certificates.

33. On October 17, 2022, the court was informed that counsel on record for 2nd & 4th defendant wished to cease acting. On the same date the proceedings were confirmed typed and ready. The application to strike out the plaint was filed.

34. This court notes with concern 2 issues; no pleadings were filed on behalf of the 3rd defendant, the memorandum of appearance filed on 15/8 2014 was for counsel on record for 2nd & 4th defendants.

35. Secondly, the twin issues regarding the demise of 2nd defendant it was raised before the trial court on 9/5/2017 and no proof of death was provided and on the same date the counsel on record sought to cease acting.

Analysis 36. The grounds for striking out are that the plaintiff failed to serve the 1st defendant with the requisite mandatory statutory notice contrary to order 1 rule 16 of CPRNotwithstanding anything in rule 15, leave to issue a third party notice for service on the government shall not be granted unless the court is satisfied that the government is in possession of all such information as it reasonably requires as to the circumstances in which it is alleged that the liability of the government has arisen and as to the departments and officers of the government concerned.

37. Secondly, the suit was filed past the statutory period prescribed under Public Authorities Limitations Actsection 3(1) and not within 12 months within which to bring proceedings against the 1st defendant. The plaintiff was discharged on 25/5/2009 but suit was filed on 18/6 2010.

38. Thirdly, section 4(2) of Limitations of Actions Actprovides;An action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued:

39. Fourthly, by virtue of section 2(1) of Law Reform Act the case against the 2nd defendant abated upon her death.

40. The plaintiff/respondent submitted by virtue of the case of Ambrose Matogo vs Benedict M.Lemisi & 2 Others[2020] eKLR supra which considered order 24 of CPR2010 to the effect that the death of plaintiff or defendant shall not cause the suit to abate if the cause of action survives or continues.

41. Secondly, the provisions of order 1 rule 16 CPR is required where the 3rd party to be joined is the government. In the instant case the 1st defendant was sued as representing the Police Commissioner as outlined in the plaint and the was no need to join the government as 3rd party.

42. Thirdly, with regard to filing suit out of time the issue was cured by amendment of pleadings/plaint as the plaintiff/applicant was granted leave to amend the plaint wherein the amendment included violation of fundamental rights. After the amendment of the plaint filed on December 17, 2019, none of the defendants filed amended defenses/pleadings. There is no time frame prescribed for filing and determination of violation of fundamental rights.

43. What the court noted that the suit is against 4 defendants each sued on individual capacity for an alleged action or omission that caused loss, injury or damage to the plaintiff. If it is proved that the suit was not properly/legally filed against 1st defendant, that shall be determined at the close of proceedings and if not liable there are other defendants.

44. If the 2nd defendant and/or 3rd defendant are deceased then abatement of the suit against them is not automatic, there must be proof of their demise before abatement of the suit against them attaches.The technical issues raised were not raised in the pleadings filed but raised have competing arguments for or against and may only be determined during hearing and determination of the suit.

45. This court in applying the standards for striking out pleadings as elucidated by law and case-law, the issues raised in the application of October 11, 2022 have not raised a prima facie case, established sufficient reason(s) or is it clear, obvious and plain to warrant striking out the plaint.

It is so ordered.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT MACHAKOS THIS 13THDAY OF DECEMBER 2022 (VIRTUAL/PHYSICAL CONFERENCE)M. W. MUIGAIJUDGEIN THE PRESENCE OF:Mr. Ndungu - For the Plaintiff/ApplicantKwamboka - For the 2nd & 4th Defendants/RespondentsGeoffrey/Patrick - Court Assistant(s)