[2022] KEHC 99 (KLR)

Nyachoti & Company Advocates v Metro Petroleum Tanzania Ltd & 3 others (Miscellaneous Application 335 of 2018) [2022] KEHC 99 (KLR) (Commercial and Tax) (11 February 2022) (Ruling)

Neutral citation: [2022] KEHC 99 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Miscellaneous Application 335 of 2018

A Mabeya, J

February 11, 2022

Between

Nyachoti & Company Advocates

Applicant

and

Metro Petroleum Tanzania Ltd

1st Respondent

Bill Kipsang Rotich

2nd Respondent

Florence Chepkoech

3rd Respondent

Premium Petroleum Co. Ltd

4th Respondent

Ruling

1. Before Court is an application dated 17/6/2021. It was brought under Orders 21 rule 8, 45 rule 1 and 51 rule (1) of the Civil Procedure Rules, and sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act.

2. Prayer Nos. 2 and 3 were allowed on 21/6/2021. Prayer 4 remained and is the subject of this ruling. The said prayer sought an order to the effect that the decretal sum ordered by court of Kshs. 1,117,364. 87 had been fully settled by the respondents and that the decree is fully settled.

3. The application was supported by the affidavit of Bill Kipsang Rotich sworn on 11/6/2021. It was based on grounds that the legal fees sought to be realized by the decree had already been paid as follows: -a.On 10/9/2015 Kshs. 500,000/= in cash to Philip Nyachoti.b.Kshs. 200,000/=, Kshs. 100,000/= and Kshs. 70,000/= in cash to Philip Nyachoti.c.14/1/2016 Kshs. 100,000/= via cheque by 2nd judgment debtor from his personal bank accountd.27/1/2016 Kshs. 25,000/= via cheque by 2nd judgment debtor from his personal bank accounte.In or about May 2016 Kshs. 30,000/= to Philip Nyachoti.f.On 9/11/2017 Tomsky Kigen Kandie drew a cheque of Kshs. 200,000/= on behalf at the request of the 2nd judgment debtor to Philip Nyachoti.

4. That the decree amount was for Kshs. 1,117,364. 87/= yet the judgment debtors had paid a total of Kshs. 1,300,000/=. There was therefore an overpayment of Kshs. 243,770. 95/= which the applicants had demanded. That the judgment creditor was seeking double payment.

5. The judgment creditor opposed the application vide a preliminary objection dated 28/6/2021 on the ground that the issue in prayer 4 had already been determined with finality and was therefore res judicata. The judgment creditor also filed a replying affidavit sworn by Mr. Philip Nyachoti 28/6/2021.

6. The judgment creditor filed their submissions dated 9/7/2021 in support of the preliminary application. It was submitted that the issue in prayer 4 was raised both before the taxing master and before this Court in the application dated 18/12/2020. That the issue was decided upon in paragraphs 5, 7, 8, 9, 10, 11, 12 and 13 of the judgment delivered on 22/4/2021.

7. That the application was therefore res judicata as the issue had been fully heard, litigated upon and determined with finality. That the issue of the alleged payment of Kshs. 1,300,000/= was substantially and directly before the Deputy Registrar during the taxation proceedings and in the aforementioned application of 18/12/2020.

8. The judgment creditor denied ever receiving the payments alleged by the applicants.

9. The judgment debtors also filed submissions dated 15/7/2021. It was submitted that pursuant to section 51(2) of the Advocates Act, the court’s jurisdiction in a matter that had been taxed by the taxing officer and had not been set aside, and had no dispute as to retainer was only to enter judgment. That the issue complained to be res judicata was not within the court’s jurisdiction and should not have been determined.

10. It was submitted that the issue was only raised during the hearing of the application dated 18/12/2020 to support the contention that the judgment creditor was then suppressing material facts. That the issue in prayer 4 was therefore not res judicata.

11. That the amount in the decree had already been paid to the judgment creditor.

12. I have considered the rival contestations of the respective parties.

13. A preliminary objection was defined in Mukisa Biscuits Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696 to mean: -“So far as I am aware, 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”.

14. A Preliminary Objection raises pure point of law, which is argued on the assumption that all facts pleaded by the other side are correct. However, it cannot be raised if any facts have to be ascertained from elsewhere or if the court is called upon to exercise judicial discretion.

15. In the present case, the objection is grounded on the fact that the issue in prayer 4 had already been raised, conclusively heard and determined and was therefore res judicata. The determination of the preliminary objection on that ground alone may dispose of the suit.

16. In Quick Enterprises Ltd vs Kenya Railways Corporation, Kisumu High Court Civil Case No.22 of 1999, the court held:-“When preliminary points are raised, they should be capable of disposing the matter preliminarily without the court having to resort to ascertaining the facts from elsewhere apart from looking at the pleadings alone”.

17. The doctrine of res judicata is set out in the Section 7 of the Civil Procedure Act as follows: -“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 can 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”.

18. In Invesco Assurance Company Limited & 2 others v Auctioneers Licensing Board & another; Kinyanjui Njuguna & Company Advocates & another (Interested Parties) [2020] eKLR, the court observed: -“A close reading of Section 7 of the Act reveals that for the bar of res judicata to be effectively raised and upheld, the party raising it must satisfy the doctrine’s five essential elements which are stipulated in conjunctive as opposed to disjunctive terms. The doctrine will apply only if it is proved that:i.The suit or issue raised was directly and substantially in issue in the former suit.ii.That the former suit was between the same party or parties under whom they or any of them claim.iii.That those parties were litigating under the same title.iv.That the issue in question was heard and finally determined in the former suit.v.That the court which heard and determined the issue was competent to try both the suit in which the issue was raised and the subsequent suit”.

19. In the present case, it was contended that the issue in prayer 4 had been raised both before the Deputy Registrar and before this Court in the application dated 18/12/2020 which culminated in this Court’s judgment of 22/4/2021. Prayer 4 sought an order that the decretal sum ordered by court of Kshs. 1,117,364. 87 had been fully settled by the respondents and that the decree was fully settled.

20. I have seen perused the entire record to ascertain the allegations raised in the replying affidavit and the submissions of Counsel. I note that the issue was raised by the judgment debtors vide the replying affidavit Bill Kipsang Rotich sworn on 24/2/2021 at paragraphs 8, 9, 12, 13, 14 and 15.

21. On 22/4/2021, this Court delivered its judgment and since the said issue had been raised, it fell for determination in the said application. The Court extensively discussed and determined the issue at paragraphs 5, 7, 8, 9, 10,11, 12 and 13 of its judgment.

22. I do not agree with the applicant’s contention that this Court had no jurisdiction to determine the issue at that stage. That its jurisdiction only extended only to entering judgment. The issue having raised in opposition to the application, it was incumbent upon the Court to pronounce itself on it. The applicants should have appealed against that judgment if they felt that the Court considered extraneous matters. The Court made a finding that there was no evidence to support the claim of payment.

23. In this regard, it is clear that the issue in prayer no. 4 has been heard and determined and it is res judicata.

24. The upshot is that I find the preliminary objection dated 28/6/2021 to be merited and I allow the same. Consequently, prayer no. 4 in the application dated 17/6/2021 is res judicata and is dismissed with costs to the judgment creditor.

It is so ordered.DATED AND DELIVERED AT NAIROBI THIS 11TH DAY OF FEBRUARY, 2022. A. MABEYA, FCI ArbJUDGE