[2022] KEHC 13608 (KLR)

Mzahim & 3 others v Attorney General (Miscellaneous Civil Application 148 of 2011) [2022] KEHC 13608 (KLR) (6 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13608 (KLR)

Republic of Kenya

In the High Court at Mombasa

Miscellaneous Civil Application 148 of 2011

JM Mativo, J

October 6, 2022

Between

Sarah Ahmed Mzahim

1st Applicant

Abdul Latif Taib

2nd Applicant

Noor Abdul Latif Taib

3rd Applicant

Naima Abdul Latif Taib

4th Applicant

and

Attorney General

Respondent

Ruling

1. In order to put the 1stapplicant’s application dated June 24, 2021 the subject of this ruling into a proper perspective, a history of this file, albeit briefly, is necessary. On May 22, 2012, after hearing the applicant’s application dated January 18, 2012, the court (Kasango J) allowed the application and issued the following orders: -a.An order of mandamus be and is hereby issued directing the Respondent and/or the Permanent Secretary of the Office of the President to settle the balance of the decrees passed in Mombasa HCCC Nos 221, 222, 223 and 224 and Certificate of Orders of Costs against the Government in the Sum of Kshs 22,190,361/= plus interests thereon at 12% per annum with effect from December 1, 2011 until payment in full;b.That failure to pay the above-mentioned decretal amount with interests thereon within three months from the date of this order, a warrant of Arrest to issue to the Permanent Secretary of the Office of the President;c.That costs of this suit be awarded to the applicants.

2. On April 2, 2013, the applicant’s Party and Party Bill of Costs was taxed as against the Respondent and a Certificate of Taxation for Kshs 450,818/= was issued by the Deputy Registrar on April 19, 2012. A Certificate of Order for Costs Against the Government was issued on April 24, 2013 pursuant to Order 29 Rule 3 of the Government Proceedings Act.1 As the record shows, numerous applications were subsequently filed and various orders issued including contempt proceedings.1Cap 40, Laws of Kenya.

3. Vide the application dated 24thJune 2021 expressed under Order 53 Rules 1 & 2 of the Civil Procedure Rules, 2010 and sections 3 & 3A of the Civil Procedure Act,2the 1st applicant prays for: -2Cap 21, Laws of Kenya.a.Entry of judgment in her favour against the Ministry of Interior and Coordination of National Government for Kshs 450,818/= being the certified taxed costs plus interests thereon at 14 p.a. with effect from April 19, 2013 until payment in full.b.That the orders of mandamus issued on May 22, 2013 be set aside and the same be substituted with an order directing the Principal Secretary, Ministry of Interior and Coordination of national Government to settle the decree in Mombasa HCC No, 221 of 1985 for Kshs 581,770. 80 plus interests thereon at 12% p.a. from 23rd January 2020 and certified taxed costs of Kshs 450,818/= plus interest thereon at 14% p.a from April 19, 2013 until payment in full.c.An order that the Deputy Registrar of this court re-asses the interest on the decretal amount awarded to her in Civil Case No. 221 of 1985 at the rate of 12% p.a. from the date of judgment until the date of assessment.d.That this court directs that upon assessment of the interest at 12% p.a. as aforesaid, an order of mandamus issues for the amount so assessed directing the Ministry of Interior Coordination of National Government to settle the assessed amount plus the taxed costs of Kshs 450,818/= plus interests thereon at 14% with effect from April 19, 2013 until payment in full.e.Costs of the application to be provided for.

4. The grounds in support of the application are that on July 24, 2019, the parties agreed to have this matter placed before the Deputy Registrar of this court with directions that the interests due to the applicant shall be assessed on the decretal amounts awarded in civil suit Nos 221, 222 and 223 of 1985. The applicants state that this court issued directions as aforesaid and further directed that the interests be awarded at the rate of 12% p.a. and that the matter was to be mentioned before this court for directions and orders. In the supporting affidavit, the applicant avers that she will be contended with prayers (2) & (3) of the application.

5. The application is opposed. On record is the Replying affidavit of Martin Mwadeje dated December 7, 2021. The salient averments are:- (a) that the 1st applicant signed a discharge and indemnity declaration dated March 12, 2018 declaring that she had received full and final compensation for the amounts owed to her in this case, so, she is estopped from claiming any money in the 3 suits. (b) Having settled the total sum of Kshs 8,827,651/=, the Respondent has satisfied the judgement; (c) that the additional sums sought to be recovered are fictitious.

6. The applicant filed a Replying affidavit dated April 23, 2018 reiterating that the decretal sum stands at Kshs 986,114. 30 with effect from May 25, 1989, that she signed the alleged discharge and indemnity voucher without reading it after it was presented to her by a person purporting to be from his advocates offices,

7. The nub of the applicant’s counsels’ submissions is that the only issue before this court is calculation and assessment of the proper interests payable on the principal sum under the decree; and that the Discharge and Indemnity voucher is disputed. The submissions are very thin on the law and authorities upon which the application is founded.

8. The Respondent filed two sets of submissions; one dated December 7, 2021 signed by Nguyo Wachira Advocate. The substance of his submissions is that (a)the decree is fully settled: (b) that the matter is res judicata (citing C.K. Bet Traders Limited & 2 others v Kennedy Mwangi & another3); (c) that the applicant has not adhered to the principles of setting aside a judgment (citing Ngurumani Limited v Kenya Civil Aviation Authority & others,4 National Bank of Kenya Limited v Rachuonyo Advocates5; and that, (d) the application is time barred under Paragraph 11 of the Advocates Remuneration Order.3[2021] e KLR.4[2014] e KLR.5[2021] e KLR.

9. The 2nd set of submission is dated June 3, 2022. It is signed by Janet Langat. The essence of her submissions is that the discharge and indemnity voucher is enforceable in law. She cited Josephine Mwikali Kikenye v Omar Abdalla Kombo & another,6 Sood v Sood & others7 and Daniel Charo Karani v Daniel Malanchini8 in support of the proposition that a party is bound by his signature. She also argued that the decretal sum was full settled; and that the claim/interest is time barred6[2018] e KLR.7[2002] ALL ER (D) 7. 8[2022] e KLR.

10. Undisputedly, these are judicial review proceedings commenced under Orders 53 of the Civil Procedure Rules, 2010. The substantive motion was allowed on May 22, 2012 effectively determining the substantive motion dated January 18, 2012. A decree was thereafter issued in accordance with the court’s orders settled the case fully. The applicants’ Party and Party Bill of Costs was taxed and a Certificate of Costs dated April 19, 2013 was issued, also, effectively settling the issue of costs.There were subsequent enforcement proceedings including contempt proceedings.

11. In the application under consideration, the applicants seek a raft of prayers as enumerated earlier. At the risk of repeating myself, prayer (2) seeks entry of judgment in favour of the 1st applicant for Kshs 450,818/=, yet there is already a final judgment/decree. One wonders on what basis such a prayer can issue.

12. Prayer (3) seeks an order thar the writ of mandamus issued on May 22, 2013 be set aside and it be substituted with a fresh order, directing the Principal Secretary, Ministry of Interior and Coordination of National Government to settle the decree passed in Mombasa HCC No. 221 of 1985 plus certified taxed costs of Kshs 450,818 plus interests at 14% p.a from April 19, 2013 until payment in full. Prayer (4) seeks an alternative prayer, to direct the Deputy Registrar to re-asses the interests on the decree awarded to the 1st applicant. Lastly, prayer (4) is that upon assessment of interest as aforesaid, the court issues an order of mandamus.

13. Essentially, the application seeks to upset the earlier orders which are final in nature. The application collapses not on several fronts. One, as stated earlier, the decree issued in this case is final. It has all the three attributes of a final order. It is not a simple interlocutory order. The three attributes of a final order were set out by the South African Appellate Division in Zweni v Minister of Law-and-Order.9 They are: - (i) the decision must be final in effect and not susceptible to alteration by the court of first instance; (ii) it must be definitive of the rights of the parties, ie. it must grant definite and distinct relief; and (iii) it must have the effect of disposing of at least a substantial portion (if not all) of the relief claimed in the main proceedings. In the instant case the decree disposed of the entire suit.91993 (1) SA 523 (AD).

14. He second ground upon which the applicant’s application collapses is that if any judicial tribunal in the exercise of its jurisdiction delivers a judgment or a ruling which is in its nature final and conclusive, the judgment or ruling is res judicata. If in any subsequent proceedings (unless they be of an appellate nature or review) in the same or any other judicial tribunal, any fact or right which was determined by the earlier judgment or ruling is called in question, the defence of res judicata can be raised. This means in effect that the judgment or ruling can be pleaded by way of estoppel in the subsequent case.

15. Before me is not an appeal or application for review. One wonders how this court can up set the decree issued earlier in this same court. One wonders how and on what basis a judgment can be issued on top of another valid judgment.

16. The third ground upon which the applicant’s application fails is that she prays for an order of mandamus to be substituted with an order directing the principal Secretary to settle the decree. This prayer is alien to law. How can a court of law issue a writ of mandamus (a final order by any definition) and subsequently substitute it with another order by an application other than an appeal or review.

17. Th fourth hurdle standing in front of this application is that a judicial decision made by a court of competent jurisdiction holds as correct and final in a civilized society. This is because Res judicata halts the jurisdiction of the court. That is why it is one of the factors affecting jurisdiction of the court. The effect of this is that the court is prevented from trying the case again in limine i.e. from the beginning.10 The rule of res judicata presumes conclusively the truth of the decision in the former suit.11 Res judicata, also known in the US as claim preclusion, is a Latin term meaning "a matter judged." This doctrine prevents a party from re-litigating any claim or defence already litigated. The doctrine is meant to ensure the finality of judgments and conserve judicial resources by protecting litigants from multiple litigation involving the same claims or issues.10Ibid.11Ibid.

18. Res judicata is provided for in Section 7 of the Civil Procedure Act.12 Its object is to bar multiplicity of suits and guarantee finality to litigation. It makes conclusive a final judgement between the same parties or their privies on the same issue by a court of competent jurisdiction in the subject matter of the suit. The scheme of Section 7 contemplates five conditions which, when co-existent, will bar a subsequent suit. The conditions are:- (i) the matter directly and substantially in issue in the subsequent suit must have been directly and substantially in issue in the former suit; (ii) the former suit must have been between the same parties or privies claiming under them; (iii) the parties must have litigated under the same title in the former suit; (iv) the court which decided the former suit must have been competent to try the subsequent suit; and (v) the matter in issue must have been heard and finally decided in the former suit.1312Cap 21, Laws of Kenya.13See Lotta v Tanaki {2003} 2 EA 556.

19. The fifth barrier standing on the way of this case is that complementary to the doctrine of res Judicata is the conception that, when a judicial tribunal becomes functus officio in respect of a particular case, its powers and jurisdiction are exhausted in respect of that issue. A judicial tribunal, after giving a decision as to the merits of a case, ceases to exist as an instrumentality in its previous form or at all, or is deprived of all the judicial functions it previously possessed, it is functus officio in respect of the issues decided. (See Nyandoro & Company Advocates v National Water Conservation & Pipeline Corporation and Kenya Commercial Bank Group Limited(Garnishee14).14Miscellaneous Civil Application No. 241 of 2019.

20. A court which, after a trial, has given a valid decision determinative of right, liability or status, has no jurisdiction to recall it whatever mistakes may have been made in facts or law.15This test is applicable only if there happens to have been a "final" and "determinative" decision, after a trial; and that a judicial tribunal becomesfunctus officio in this sense only in relation to a particular matter, not in respect of all matters. For a judicial tribunal to become functus officio, it must have delivered a valid judgment, decree or order of a final and conclusive nature and res judicata must have come into existence. This court is being invited to sit on appeal on its decision. I decline the invitation to travel along this forbidden route.15(1943-4) 68 C.L.R. at p. 590.

21. Put simply, the applicant now seeks to review the earlier orders even though the applicant did not invoke the provisions for review. Even if I were to treat the instant application as an application for review (and I am unable to), no grounds for review have been cited as contemplated by Section 80 of the Civil Procedure Act as read with Order 45 Rule 1 of the Civil Procedure Rules, 2010. The provisions of Order 53 cited by the applicant have no application to the issues raised in this application. The said provision has been improperly invoked.

22. Equally misguided is the prayer for setting aside. A court can set aside ex parte orders. In setting aside ex parte orders, the court must be satisfied of one of two things, namely, either that the respondent was not properly served with summons or that the respondent failed to appear in court at the hearing due to sufficient cause. The decree in question was arrived at after hearing both parties. The prayer for setting aside has been deployed in a cavalier manner. It’s not appropriate in the circumstances of this case. It has been improperly invoked. It’s not supported by the cited provisions of the law or the facts.

23. Notably, the applicant has invoked sections 1A, 1B and 3A of the Civil Procedure Act, essentially invoking the inherent powers of this court. The courts’ power stems from the Constitution and the statutes that regulate them. However, the jurisdiction of each hierarchy of the courts is limited within the boundaries of the written law apart from the High Court which is sometimes said to have inherent jurisdiction to do things not specifically provided for. In addition to the powers enjoyed in terms of statute, the High Court has always had additional powers to regulate its own process in the interests of justice commonly described as an exercise of its inherent jurisdiction defined by Freedman C J M in Current Legal Problems’16 as the: -16Montreal Trust Co v Churchill Forrest Industries (Manitoba) Ltd 1972 21 DLR (3d) 75 at 81 quoting I H Jacob, Current Legal Problems (1970) p 51, citing I H Jacob.“. . . the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, and in particular to ensure the observance of the due process of the law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them…”

24. Jerold Taitz, in his book, The Inherent Jurisdiction of the Supreme Court17 pithily describes the inherent jurisdiction of the high court as: -17Jerold Taitz, University of Cape Town, Juta, 1985. “. . .This latter jurisdiction should be seen as those (unwritten) powers, ancillary to its common law and statutory powers, without which the court would be unable to act in accordance with justice and good reason. The inherent powers of the court are quite separate and distinct from its common law and its statutory powers, eg in the exercise of its inherent jurisdiction the Court may regulate its own procedure independently of the Rules of Court.”

25. Even though the inherent jurisdiction of the high court has long been acknowledged and applied by courts, 18 a court’s inherent power to regulate its own process is not unlimited. It does not extend to the assumption of jurisdiction which the court does not otherwise have. In National Union of Metal Workers of South Africa & others v Fry’s Metal (Pty) Ltd19 it was aptly stated: -18Ritchie v Andrews (1881-1882) 2 EDL 254; Conolly v Ferguson 1909 TS 195. 192005 (5) SA 433 (SCA) para 40 citing Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service 1996 (3) SA 1 (A) at 7 F. 6“While it is true that this Court’s inherent power to protect and regulate its own process is not unlimited – it does not, for instance, “extend to the assumption of jurisdiction not conferred upon it by statute. . .”

26. It must be mentioned at the outset that the inherent powers of the court are not an open license for the court's exercise of unlimited discretion. It is invoked to effect procedural fairness between the parties where a statute falls short of doing so or where there is a gap in the law. The inherent power claimed is not merely one derived from the need to make the court's order effective, and to control its own procedure, but also to hold the scales of justice where no specific law provides directly for a given situation.2020Se Ex parte Millsite Investment Co (Pty) Ltd 1965 (2) SA 582 (T) at p 585F-G Vieyra J and Union Government and Fisher v West 1918 AD 556.

27. As repeatedly stated above, a final decree exists in this case. This court is now res judicata. It cannot replace its earlier orders with fresh orders. This is unheard of. This court is being invited to engage in a gross act of committing an illegality. The attempt to invoke this courts inherent jurisdiction in the circumstances of this case is misguided. Flowing from the above discussions and findings, it is my conclusion that the 1st applicants’ application dated June 24, 2021 is fatally flawed, incompetent and devoid of merit. I therefore dismiss the said application with costs to the Respondent.Right of appeal.

SIGNED AND DATED AT MOMBASA THIS 3RD DAY OF OCTOBER 2022. JOHN M. MATIVOJUDGESIGNED, DATED AT DELIVERED VIRTUALLY AT MOMBASA THIS 6TH DAY OF OCTOBER 2022. OLGA SEWEJUDGE