[2017] KEHC 6131 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO. 237 OF 2014

NGURUMAN LIMITED ……………………………………………PLAINTIFF

VERSUS

JAN BONDE NIELSEN…………………………...................1ST DEFENDANT

PETER BONDE NIELSEN…………………………………..2ND DEFENDANT

RULING ON JURISDICTION

1. This matter is part heard before me, when I was still in the High Court Civil Division. The plaintiff had testified and produced his exhibits. However, when being cross examined, the court noted that the defendant’s counsel Mr James Gitau Singh focused on questions which gave an impression that this matter is either subjudice or resjudicata other pending suits or suits which had been fully determined.

2. The issue of jurisdiction of the court was also raised at paragraph 15 of the defendant’s statement of defence. The court therefore directed that the parties file written submissions for the court to first of all determine that issue of jurisdiction before making any one more move in the matter. This is so because jurisdiction is everything, without which, a court of law could be acting in vain if it proceeded to hear and determine the suit only to find that it had no jurisdiction to do so.

3. According to the defendant, there are 7 other cases involving similar parties and similar issues as the parties and issues to be determined in this matter and that therefore this matter is res subjudice those other cases. The cases which are said to be subjudice this suit are named in the defendant’s submissions filed on 21st March 2015. These are:

a. HCC 387/2014- Nguruman Ltd vs Jan Bonde Nielsen. In that case, the plaintiff who is the same plaintiff in this case claimed inter alia, damages of USD 46,750,000 being damages it incurred whilst an injunction that had been obtained by the defendant was in force and that, that injunction prevented the plaintiff from leasing out the property at USD 250,00 per week.

b. It is claimed that in the above suit the defendants also raised a defence of subjudice as there are other cases similar to it, pending namely, HCC 237 of 2014, Nguruman Ltd vs Jan Bonde Nielsen and Peter Bonde Nielsen; HCC 332/10 Jan Bonde Nielsen v Hermaus Steyn and Nakuru HCC 120/2010 – Nguruman Ltd vs Jan Bonde Nielsen and that only after determination of the above suits would the court determine whether or not the defendant was a trespasser upon the Nguruman property.

c. In HCC Nakuru 120 of 2010, it is claimed that the plaintiff claims that the defendant trespassed into the plaintiff’s property Narok/Nguruman/Kamorora/1 whereas the defendants claim that they entered into the property with the consent and concurrence of the plaintiff and had made substantial investments to enhance the suit property as pleaded in HCC 322/2010 Bonde Nielsen V Hermanus Steyn.

d. In Nakuru HCC 103/2009 –Nguruman Ltd vs Peter Bonde Nielsen is a suit filed by the plaintiff claiming that it was the owner of LR Narok/Nguruman/Kamorora/1 and that the defendant trespassed onto it thereby denying the plaintiff enjoyment of a portion known as Oldonyo Laro. The defendant claim that the witnesses to be called in the above case are the same ie Steyn, Nielsen and Nguruman and that at the center of the controversy is Steyn, the principal shareholder of Nguruman Limited and Jan Nielsen.

e. In HCC 332/2010, Jan Bonde Nielsen vs Hermanus Steyn the plaintiff claimed breach of contract. It is contended that Mabeya J in the above suit had recommended that all the suits be consolidated and heard expeditiously but that that order has not been complied with and that the plaintiff has continued to file a multiplicity of suits. It is also claimed that parties are similar to those in this suit.

4. It is therefore alleged that this suit violates Section 6 of the Civil Procedure Act hence it should be struck out or be dismissed or stayed until all the other cases named herein are heard and determined.

5. On the plea of resjudicata, it is alleged that this suit violates Section 7 of the Civil Procedure Act. That the plaintiff lied in paragraph 26 of its plaint when it said that there was no other suit pending besides this suit between the same parties and over the same subject matter, yet there are several suits enumerated herein above pending, touching on the same subject matter between the same parties.

6. Further, that the said cases are so intertwined that they are mentioned in paragraphs 11,12 and 13 of the plaint and the plaintiff’s witness statement written by Moses Ololowuaya filed in 12th August 2014.

7. The defence counsel relied on Mulla on code of Civil Procedure Act 16th Edition VOL. 1 1908 at page 161 on the test of whether the claim in the subsequent proceedings is Resjudicatathe former proceeding. Further reliance was place on John Christopher Kamau v Co-operative Bank of Kenya [2014]eKLR which upheld the case of Mburu Kinyua v Gachiri Tuti [1998] KLR 69 where the court found that an issue which ought to have been made a ground of attack or defence in a former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

8. The defence also cited the locus classicus case on Resjudicata, the case of Yat Tung Investment Company Ltd V Dao Heng Bank Ltd & Another, Privy Council Appeal No. 14/1973 citing Henderson v Henderson [1843] 3 Hare 100 per Wigam V.J. and as adopted by the Court of Appeal in Uhuru Highway Development Ltd v CBK & 2 Others [1996]eKLR where the Court of Appeal issued a stern warning to advocates who insist on filing and arguing similar applications to those dismissed otherwise they would be called upon to show cause why they should not be made to personally bear costs.

9. On violation of Section 6 of the Civil Procedure Act, reliance was placed on Church Road Development Company Ltd v Barclays Bank of Kenya Ltd & 2 Others[2007] e KLRwhere Ochieng J quoted Black’s Law Dictionary on stay of proceedings which are subjudice other pending proceedings of similar nature and between the same parties.

10. Further reliance was place on Benja Properties Limited v Savings and Loans K Ltd [2005] e KLR which is said to be in parimateria with this suit and where Ochieng J stayed the suit after finding it to be subjudice other pending proceedings.

11. reliance was further placed on Muturi Investments Ltd V NBK [2006] e KLR where Kasango J held that where two actions have a common question of law and of fact, in that documents which will be relied on shall also require similar interpretation from the court then if the other the suit is heard separately, would mean that the evidence submitted by the parties will be duplicated in both cases.

12. It was therefore submitted that this court became alive to the existence of several other cases and the possibility of the court reaching a different conclusion over the same facts that is why it stayed the hearing until submissions as to whether the court had jurisdiction to deal with the matter, hence the suit should be found to be an abuse of court process and that it be struck out with costs or be stayed, since even Honourable Kamau J had on 25th September 2015 in HCC 332/2010 admonished parties for not listing the various suits for hearing, but instead the plaintiff herein proceeded to file related suits.

13. On the part of the plaintiff, its counsel Mr. Ahmednassir Senior Counsel submitted, relying on the written submissions filed on 9th June 2015 as orally highlighted on 27th September 2016, contending that the defendant’s strategy is to ensure that no suit involving these parties proceeds in court, that is why they raised these issues of subjudice and resjudicata after the plaintiff’s witness had concluded his testimony. That the contentions by the defendant are not premised on any formal application or any law or supported by any affidavit which renders the objection a nullity.

14. It was submitted that the power of the court to strike out any proceedings is a draconian one and must be sparingly exercised and that the party must be given an opportunity to be heard on the allegations which must be in an application and an affidavit not like in this case.

15. On the allegations that this suit is similar to other suits as listed in paragraph 2 of the defendant’s submissions filed on 21st March 2016, it was submitted that the case herein is the only matter where Peter Bonde Nielsen appears as a party; that in HCC 322/2010 Honourable Odunga J injuncted the 3rd defendant therein who is the plaintiff in this case from evicting the 1st defendant Jan Bonde Nielsen who was ordered to provide an undertaking as to damages; that this plaintiff appealed to the Court of Appeal and the Court of Appeal set aside the injunction granted by Honourable Odunga J; that the 1st defendant herein after loosing out through the appeal, was to vacate the suit premises together with his son, the 2nd defendant but instead they went on a rampage, destroying everything in the lodge hence this suit for damages for destructions caused on 14th April 2014 and 18th May 2014.

16. It was submitted that there is no other suit for malicious damage to property similar to this suit pending before any court of competent jurisdiction hence it is true that there is no other suit pending between the same parties over the same subject matter.

17. It was also submitted that in HCC 387/2014, Peter Nielsen who is the 2nd defendant herein is not a party thereto and that the cause of action is for enforcement for the undertaking as to damages given by Jan Bonde Nielsen in HCC 332/2010 following the successful Appeal in CA 77/2012 which discharged and set aside an injunction granted by justice Odunga.

18. Further, that HCC 332/2010 is between Jan Bonde Nielsen V. Hermans Steyn & Nguruman Ltd. That the two defendants Hermans & Hedda are not parties to this suit and that in that case, the claim by Jan Bonde Nielsen is for 50% shares held by 1st and 2nd defendants company in the 3rd defendant ( plaintiff herein), and a declaration of partnership on a 50/50 basis in Nguruman Ltd between majority shareholders, not damages for damaged property and that the Court of Appeal in CA 77/12 appreciated that HCC 332/2010 was a dispute about shares in the plaintiff company.

19. It was further submitted that in Nakuru HCC 120/2010 Nguruman Ltd V Jan Bonde Nielsen , there is a defence and counter claim, and is a case founded on the tort of trespass and defamation. That the claim is for mesne profits injunction, damages, vacating of premises and that the counter claim in that case is a replica of the plaint in HCC 322/2010 with an alternative claim for special damages for unjust enrichment which claim has nothing to do with malicious damage to property claimed in this case.

20. It was further submitted that in Nakuru HCC 103/2009 – Nguruman Ltd vs Oldonyo Laro Ltd, it is a trespass claim and seeks for mesne profits, general damages and an injunction and that the defence therein replicated the claim in HCC 322/2010 and Nakuru HCC 120/2010 hence this case is distinct from the named suits.

21. Accordingly, it was submitted by the plaintiff’s Senior Counsel that the law on sudjudice and resjudicata has been quoted out of context by the defendant’s counsel. That there is no evidence that the cause of action is the same as that in the named cases and or that the plaintiff had an opportunity of getting the same reliefs in the former proceedings. Further, that the plaintiff cannot seek reliefs in 2014 in matters of 2009-2010 and that therefore the cited decisions are irrelevant.

22. It was submitted that no single suit has determined a similar dispute between the same parties or parties litigating under the same title hence it is the defendant who should be found to be abusing the court process and frustrating the plaintiff’s bid to have this suit heard and determined as it is the only suit which is ready for trial.

23. Further, that HCC 332/2010 was for hearing before a 3 judge bench on 28th September 2016 while 387/2014 was pending ruling to strike out the defence. Senior Counsel urged the court to strike out the objection by the defendant with costs.

24. In a rejoinder, Mr James Gitau Singh submitted that it is the court that invoked its inherent jurisdiction to decide on its jurisdiction to hear this suit hence no formal application was necessary and that in any event, the issue of jurisdiction was raised in the defence.

25. It was submitted that the court’s directions were given without any objection from either side hence the matter is rightfully before the court for determination and that it is acceptable within Sections 1A and 1B of the Civil Procedure Act as no prejudice has been shown to be occasioned to the plaintiff.

26. It was submitted that in any event, the defendants had raised the issue of jurisdiction in their defence and at issue No. 18. Further, that other judges and courts (Emukule J and Wendo J) had given similar directions that issues in those cited cases were the same. It was submitted that the defendants had demonstrated the common threads in those matters and that the doctrine of resjudicata was supported by the statutory and case law cited. That the matters herein are substantially and directly in issue in the previous proceedings, and that even if no matter has been concluded, Section 6 of the Civil Procedure Act on subjudice cannot be wriggled out as the plaintiff is litigating piecemeal.

27. It was submitted that the common thread in the cases cited is that the defendants claim that Jan Bonde Nielsen financed the development of the camp or counter claimed that he was misled. Further, that destruction of own property is not a tort. It was further contended that the issue of ownership of the property must be determined by the other courts before this case can be determined and that all the other cases are ready for trial; while the Nakuru cases are now consolidated and that the Nakuru cases had timelines.

28. In response, Senior Counsel Ahmednasir submitted that there is no dispute as to ownership of the property in issue and that the court cannot consolidate the matters because the causes of action are not in the same context.

Determination.

29. I have carefully considered the parties advocate’s detailed submissions on whether or not this case is subjudice or resjudicata previous suits as cited and claimed and therefore whether the suit herein should be struck out for being an abuse of the court process, for being subjudice or for being Resjudicata the cited cases.

30. First and foremost, is that the plaintiff’s witness had testified in this matter and was in the process of being cross examined when the issue of res subjudice and or resjudicata kept popping up in the questioning by the defendants counsel hence the court on its own motion had to urge the parties to address those questions.

31. Accordingly, it was not necessary that a formal application be filed and or affidavits be filed to address those issues unless parties so wished. In this case, none of the parties urged the court to allow them file any affidavits.

32. The question is whether from the submissions and the record, without the court seeking for aduction of evidence on oath, it is apparent that this suit is resjudicata or res subjudice the cited cases and if so, what orders should this court make.

33. On whether this suit is resjudicata the cited cases, Section 7 of the Civil Procedure Act enacts- that:

“ No court shall try any suit or issue in which the matter 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 of 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.”

34. The test to determine whether the matter is resjudicata was laid in the case of DSV Silo vs the Owners of Sennar [1985] 2 ALL ER 104 as cited in Bernard Mugi Ndegwa v James Nderitu Githae & 2 Others[2010] e KLR and The Henderson v Henderson [1843] 67 ER 313, res judicata is described as:

“….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 litigations 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 pleas of resjudicata 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.”

35. In Attorney General & Another ET vs [2012] e KLR it was held:

“ The courts must always be vigilant to guard litigants evading the doctrine of resjudicata 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 vs NBK & Others [2001] EA 177 the court held that “ parties cannot evade the doctrine of resjudicata by merely adding other parties or causes of action in a subsequent suit.” In that case the court quoted Kuloba J, ( as he then was) in the case of Njanju v Wambugu and another Nairobi HCC 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 in every occasion he comes to court, then I do not see the use of doctrine of resjudicata…”

36. In Bernard Mugo Ndegwa v James Githae & 2 Others[2010] e KLR it was held that the applicant alleging resjudicata must show that;

a) That the matter in issue is identical in both suits;

b) The parties in the suit are substantially the same;

c) There is concurrence of jurisdiction of the court;

d) The subject matter is the same; and

e) That there is a final determination as far as the previous decision is concerned.

37. Applying the above principles to the suit herein, even without getting into the question of whether the subject matter is the same; or that the parties are the same; or whether there is concurrence of jurisdiction I find that there is no evidence of any determination, let alone a final determination of a former decision in a case similar to this case. There can be no plea of resjudicata where there is no previous or former suit where a final determination has been made.

38. Accordingly, I find that the plea of resjudicata raised by the defendant in this case is misplaced and misguided and therefore the same is hereby rejected and dismissed.

39. On whether this suit is subjudice the cited suits, Section 6 of the Civil Procedure Act provides that:

“ No court shall proceed with the trial of any suit or proceedings in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceedings in the same or any other court having jurisdiction in Kenya to grant the relief claimed.”

40. Where the test of res subjudice is established or met, the explanatory notes to the Section 6 of the Civil Procedure Act stipulates that the latter suit would be stayed until the earlier suit is heard or determined.

41. In practice, the two similar suits could be consolidated for hearing and determination. In the present situation, it is not in dispute that this suit and the claim therein arises from HCC 387/2014 between Nguruman Ltd vs Jan Bonde Nielsen. The said suit has not been heard and or determined. The linkage is that in HCC 387/2014 the claim is for enforcement of an undertaking as to damages given by the defendant herein in HCC 332/2010 following the successful appeal in CA 77/2012 which discharged and set aside an injunction granted against the plaintiff by Honourable Odunga J. It follows that HCC 387/2010 and HCC 332/2014 are closely linked since an order in one gave rise to the other suit. However, the claims are not the same, in as much as the parties are the same.

42. In the instant case, the plaintiff claims that after the defendant lost an injunction granted in his favour in HCC 387/2010 vide an appeal in CA 77/2012, he went to the property which he had leased from the plaintiff and destroyed it hence this claim for the value of the damaged property. It follows that this case and HCC 387/2010 are interlinked because this suit arose as a result of a successful appeal from HCC 387/2010.

43. But that is not to say that the claims are the same, although the parties are substantially the same save that Peter Bonde Nielsen is not a party to the earlier suits.

44. However, in Nakuru ELC 103/2009, the court upon perusal of the plaint and amended defence and counter claim notes that the defendant therein Oldonyo Laro Estate Limited is a company associated with Peter Bonde Nielsen who is the 2nd defendant in this suit. The said second defendant is the son to Jan Bonde Nielsen, the 1st defendant in this case and it is claimed that the plaintiff herein and one Steyn represented that Oldonyo Laro Limited would, without any obstruction whatsoever, be allowed to develop a luxury camp, called the Oldonyo Laro Camp, engage employees, develop the road network and develop airstrips within the Nguruman property. It is the Oldonyo Laro Camp which the plaintiff (Nguruman Ltd) in this case, claims was its property that was maliciously destroyed by Jan Bonde Nielsen and his son Peter Bonde Nielsen after they lost out an injunction in CA 77/2014.

45. According to the defendants herein, they cannot be asked to pay damages for destroying their own property( the camp) which they developed, upon representation by Hermanus Steyn that he was authorized by Nguruman Limited to allow their company Oldonyo Laro Limited onto the Nguruman property.

46. It follows that albeit this dispute is not over the Nguruman Property, there is a huge dispute over who developed the camp and therefore whether the plaintiff has any claim over the destroyed camp, in as much as it is the owner of the land on which the camp was constructed. That is the gist of the amended counter claim, which is a suit within a suit in Nakuru HCC 103/2009.

47. Accordingly, I have no hesitation in finding that the issues in this suit are directly an substantially in issue in Nakuru HCC 103/2009 previously instituted between parties under whom they or any of them claim.

48. Therefore, albeit I find that this suit is not frivolous or an abuse of court process, but that in view of its close linkage with the issues which must first be determined in HCC 103/2009 at Nakuru ELC, wherein the Oldonyo Laro Ltd counter claimed for USD 14,000,000 alleging that it had been misrepresented into investing in the development of the Oldonyo Laro Camp.

49. Thus, unless the issue of whether or not the ‘camp’ was developed by the plaintiff herein or the defendants through their company Oldonyo Laro Ltd is determined, this court will be engaging in a pious exploration of issues which are pending determination before other courts of competent jurisdiction.

50. Accordingly, I find that this matter is res subjudice Nakuru HCC/ELC 103/2009 and the appropriate order that comments itself for granting at this stage is to order and I hereby order that this suit shall forthwith be stayed pending hearing and determination of HCC/ ELC Nakuru 103/2009.

51. As the court was the mover of the submissions by both parties to this dispute on the issues that were ably canvassed by both parties’ advocates, I order that each party do bear their own costs of the proceedings leading to this order.

52. I further direst that this file be returned to the Presiding Judge of the High Court Civil Division to take note of the order herein and give appropriate directions more particularly on the mode of tracking of the progress of the Nakuru HCC/ ELC 103/2009.

53. Mention on 7th June 2017 before the presiding Judge, Civil Division of the High Court for directions.

Dated, signed and delivered in open court at Nairobi this 28th day of March 2017.

R.E. ABURILI

JUDGE

In the presence of

Mr Cohen h/b for SC Ahmednasir for the plaintiff

N/A for defendant

CA: George