[2024] KEHC 3918 (KLR)

Njagi Wanjeru & Company Advocates v County Secretary, Nairobi City County & 2 others (Judicial Review Miscellaneous Application 605 of 2016) [2024] KEHC 3918 (KLR) (Judicial Review) (5 April 2024) (Ruling)

Neutral citation: [2024] KEHC 3918 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review Miscellaneous Application 605 of 2016

JM Chigiti, J

April 5, 2024

Between

Njagi Wanjeru & Company Advocates

Applicant

and

County Secretary, Nairobi City County

1st Respondent

County Treasurer, Nairobi City County

2nd Respondent

Nairobi City Government

3rd Respondent

Ruling

1. Through a Notice of Preliminary Objection date 20th November, 2023, the ex-parte applicant raised an objection in limine to the 1st and 2nd respondents' Notice of motion dated 11. 10. 2023 on the following grounds: -a.The ruling/order dated 9. 2.2023 is not a “default ruling/order” and therefore cannot be set aside in the manner adopted by the applicants. It is a rudimentary principle of law that the same can only be impugned by way of appeal or review.b.The JR Misc. Civil Application No. 605 of 2016 herein (the main application) was heard and finally determined/concluded in terms of the decree dated 14. 2.2017 and is therefore “unavailable” for purposes of striking out as strangely misconceived by the applicants' advocates.c.In case the applicants’ advocates are referring to the Notice of motion dated 7. 12. 2018, the same was also heard and finally determined in terms of the ruling/order dated 9. 2.2023 and is therefore similarly “unavailable” for purposes of striking out as strangely misconceived by the applicants' advocates.d.The said application is a gross abuse of the court process for being a mischievous "execution-thwarting" stratagem just like the previous ill-fated applications dated 19. 3.2019 and 18. 2.2021 rather than a genuine pursuit of a legal right.e.The purported issues being raised are res judicata and therefore an abuse of the court process.The exparte Applicant relies on the foregoing points of law.

Respondent's Case 2. It is the Respondents case that this Court has not adjudicated upon the substantive issues raised in the Respondent application dated 11th October, 2023.

3. The Court only dealt with the issues of non-compliance with order 9 rule 9 of the Civil Procedure Rules and did not touch on the issues raised by the Respondent touching on this Honourable Courts Jurisdiction.

4. The Respondent maintains that the substantive issues before the court should determine on merit despite the non-compliance with order 9 rule 9 of the Civil Procedure Rules. Such noncompliance is a technicality which is curable under Article 159(2) (d) of the Constitution as well as the overriding objective of the court. Reliance is placed in the Court of Appeal in Tobias M. Wafubwa v Ben Butali [2017] eKLR stated that;“We would go further to add that, provided that where the failure to comply with the rule 9 did not undermine the jurisdiction of the court, or affect the core of the dispute in question, or prejudice either of the parties in any way as to lead to a miscarriage of justice, then, Article 159 of the Constitution and the overriding principles could be called upon to aid the court to dispense substantive justice through just, efficient and timely disposal of proceedings. A similar approach was invoked in the case of Boniface Kiragu Waweru vs James K. Mulinge [2015] eKLR where in addressing the issue of non-compliance with order 9 rule 9 this Court observed thus;“All in all we are not persuaded that non-compliance with Order III rule 9A of the Civil Procedure Rules was meant to make the following proceedings incompetent or a nullity, efficacious as the provision was meant to be. Indeed, all times, the set procedures ought to be followed or complied with. However, we find that non-compliance, in the present matter, did not go to the root of the proceedings. The non-compliance we may say, was procedural and not fundamental. It did not cause prejudice to the appellant at all...”

5. In the instant case, the learned judge took the view that, the issue being one of failure to comply with Rule 9 was a procedural lapse that did not go to the root of the appeal and duly invoked the directions of Article 159 of the Constitution in dismissing the appellant's application.

6. By declining to dismiss the appeal on account of non-compliance, was by exercise of the learned judge's discretion. The guiding principles on the exercise of discretion by the trial court are that an appellate court will not interfere with such exercise unless it is demonstrated that the trial court misdirected itself, or considered matters it should not have considered, or failed to take into account matters which it should have taken into account, and in so doing arrived at the wrong decision. (See Mbogo & Another vs Shah (1968) EA 93 and United India Insurance Co. Ltd vs East African Underwriters (Kenya) Ltd [1985] E.A 898) ...." [Emphasis Added]

7. That non-compliance with Order 9 Rule 9 of the Civil Procedure Rules is not fatal but venial omission which would be cured under Article 159 (2) (d) of the Constitution and the oxygen principle.

8. The Applicant has strictly relying on the provisions of Order 9 Rule 9 failed to listen to the loud and repeated echoes of Article 159 and/or the overriding objective of the court that courts commanding courts to always strive to serve substantive justice rather than unduly rely on technicalities to adjudicate cases.

9. Article 50(1) of the Constitution of Kenya provides that every person has a right to have any dispute that can be resolved by the application of the law decided in a fair and public hearing before a court or an independent and impartial tribunal or body.

10. The twin rules of natural Justice that no man shall be a Judge in his own cause (Nemo Judea.: in causa ma) and that no man shall be condemned unheard (audi alteram partem) are cardinal principles of law which are fundamental in our justice system. Halsbury Laws of England, 5th Edition 2010 Vol. 61 at para 639 on the right to be heard states that:“The rule that no person is to be condemned unless that person has been given prior notice of the allegations against him and a fair opportunity to be heard (the audi alteram partem rule) is a fundamental principle of justice. This rule has been refined and adapted to govern the proceedings of bodies other than judicial tribunals; and a duty to act in conformity with the rule has been imposed by the common law on administrative bodies not required by statute or it reiterates that this Honourable Court has not and has never adjudicated upon the substantive issues raised in the Respondent application dated 11th October, 2023.

11. It is their case that the Applicant wants this court to condemn the Respondent unheard contrary to the provisions of Article 50(1) of the Constitution of Kenya and the Rules of Natural Justice.

12. They want the Court to exercise its discretion in favour of the Respondent whose right are protect under the Constitution of Kenya and thus should not be condemned unheard.

13. Section 3A of the Civil Procedure Act vests in the courts inherent power to make any orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.

14. They have invited the court to invoke the overriding objective in sections 1A & 1B and in 2010 by Article 159 of the Constitution. The substantive law on Res Judicata is found in Section 7 of the Civil Procedure Act Cap 21 which provides 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. Accordingly, they argue that the Preliminary Objection should be dismissed so as to pave the way for this matter to proceed to a hearing on an expedited basis.

Analysis and determination: 16. The Court of Appeal in the case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd [1969) EA 696 at page 700 paragraphs D-F Law JA as he then was had this to say:“....A Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the Jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.At page 701 paragraph B-C Sir Charles Newbold, P. added the following:“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is usually on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion....”

17. The JR Misc. Civil Application No. 605 of 2016 herein (the main application) was heard and finally determined/concluded in terms of the decree dated 14. 2.2017.

18. The Notice of Motion dated 7. 12. 2018 was also heard and finally determined in terms of the ruling/order dated 9. 2.2023.

19. A decree or an order cannot be struck out. They can only be set aside through an appeal or review.

20. What the applicant is pursuing cannot be achieved in the circumstances.

21. The said application is a gross abuse of the court process.

Order; 22The Notice of Preliminary Objection dated 20th November, 2023 is upheld.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 5TH DAY OF APRIL 2024. ……………………………………J. CHIGITI (SC)JUDGE