[2022] KEHC 345 (KLR)

Nyarangi v Musyoki Mogaka & Co. Advocateses (Civil Appeal 80 of 2020) [2022] KEHC 345 (KLR) (Civ) (6 May 2022) (Judgment)

Neutral citation: [2022] KEHC 345 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 80 of 2020

JK Sergon, J

May 6, 2022

Between

Samson Mogikonyo Nyarangi

Appellant

and

Musyoki Mogaka & Co. Advocateses

Respondent

(Being an appeal against the ruling and order of Honourable J. Ofisi (Mrs.) (Resident Magistrate) delivered on 24th January, 2020 in MILIMANI CMCC no. 1828 of 2019)

Judgment

1. The appellant herein instituted a suit before the Chief Magistrate’s Court by way of the plaint dated 19th March, 2019 and amended on 8th August, 2019 and sought for the sum of Kshs.1,000,000/= plus costs of the suit and interest thereon against the respondent.

2. The appellant pleaded in the amended plaint that he was at all material times the registered owner of the parcel of land known as Kwale/galu Kinondo/1869/1870/1871 situated at Kwale (“the subject property”) and that the respondent was the advocate handling the sale transaction of the subject property on his behalf wherein the sale price was in the sum of Kshs.4,500,000/=.

3. The appellant pleaded in the amended plaint that on various dates between 17th January, 2014 and 18th June, 2014 the respondent received various monies totaling the sum of Kshs.4,070,000/= in respect to the sale of the subject property but that he only released the sum of approximately Kshs.3,500,000/= to the appellant, thereby leaving an outstanding balance of Kshs.1,000,000/= which the appellant claimed in the suit.

4. Upon service of summons, the respondent entered appearance and filed his statement of defence dated 17th May, 2019 and amended on 28th August, 2019 to deny the averments made in the amended plaint.

5. Subsequently, the respondent filed the application dated 25th July, 2019 and sought for an order that the appellant’s suit be struck out for failing to disclose any reasonable cause of action against him and for being statute barred.

6. The appellant opposed the aforementioned application by swearing a replying affidavit on 15th October, 2019, with the respondent rejoining with a supplementary affidavit he swore on 23rd October, 2019.

7. The aforementioned application was canvassed through written submissions.

8. Upon hearing the application, the trial court by way of the ruling delivered on 24th January, 2020 allowed it and consequently struck out the appellant’s plaint with costs.

9. Being aggrieved by the aforementioned ruling, the appellant sought to challenge the same by way of an appeal. Through his memorandum of appeal dated 21st February, 2020 the appellant put in the following grounds:i.THAT the honourable magistrate erred in law and in fact in striking out the suit.ii.THAT the honourable magistrate erred in law and in fact in failing to consider and evaluate the appellant’s submissions.iii.THAT the honourable magistrate erred in law and in fact by finding that the suit is an abuse of the court process.iv.THAT the honourable magistrate erred in law and in fact by failing to consider the real issues raised in the application.v.THAT the honourable magistrate erred in exercise of judicial duty by failing to consider and take into account the overriding objective of the Civil Procedure Act and Rules set out in Sections 1A and 1B of the said Act.vi.THAT the honourable magistrate erred in law and in fact by disregarding the provisions of Article 159(2)(d) of the Constitution that calls for the determination of suits on their merits without undue regard to technicalities.

10. This court gave directions to the parties to file written submissions on the appeal. The appellant vide his submissions argues that by striking out his suit, the trial court took a draconian approach and denied him the opportunity to pursue his claim on merit.

11. The appellant also faulted the trial court for striking out his claim on the basis that it did not disclose any reasonable cause of action against the respondent and that it was statute barred, and yet the proviso of Section 19(1) and (4) of the Limitation of Actions Act Cap. 22 Laws of Kenya which reads that:“An action may not be brought to recover a principal sum of money secured by a mortgage on land or movable property, or to recover proceeds of the sale of land, after the end of twelve years from the date when the right to receive the money accrued…An action to recover arrears of interest payable in respect of any sum of money secured by a mortgage or payable in respect of proceeds of the sale of land, or to recover damages in respect of such arrears, may not be brought after the end of six years from the date on which the interest became due”

12. It is the submission by the appellant that the purpose of the claim was to recover the balance of the proceeds of sale of the subject property, together with accrued interest, and hence the claim was properly before the trial court.

13. The appellant is therefore of the view that the trial court erred in its decision to strike out his claim and relies on the case of D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another[1980] eKLR where the Court of Appeal held thus:“The court ought to act very cautiously and carefully and consider all facts of the case without embarking upon a trial thereof, before dismissing a case for not disclosing a reasonable cause of action or being otherwise an abuse of the process of the court. At this stage the court ought not to deal with any merits of the case for that 'is a function solely reserved for the judge at the trial as the court itself is not usually fully informed so as to deal with the merits "without discovery, without oral evidence tested by cross-examination in the ordinary way". (Sellers, L.J. (supra)).As far as possible, indeed not at all, there should be no opinions expressed upon the application which may prejudice the fair trial of the action or make it uncomfortable or restrict the freedom of the trial judge in disposing of the case in the way he thinks it right.If an action is explainable as a likely happening which is not plainly and obviously impossible the court ought not to overact by considering itself in a bind summarily to dismiss the action. A court of justice should aim at sustaining a suit rather than terminating it by summary dismissal. Normally a law suit is for pursuing it.No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action, and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the fullfacts of a case before it.”

14. For the foregoing reasons, the appellant urges this court to allow the appeal and to set aside the impugned ruling.

15. In retort, the respondent contends that the trial court acted correctly in dismissing the appellant’s suit since the same amounts to an abuse of the court process. The respondent cites inter alia, the case of Satya Bhama Gandhi v Director of Public Prosecutions & 3 others [2018] eKLR in which the court rendered itself in the following manner:

16. “The situation that may give rise to an abuse of court process are indeed in exhaustive, it involves situations where the process of court has not been or resorted to fairly, properly, honestly to the detriment of the other party. However, abuse of court process in addition to the above arises in the following situations:-a.Instituting a multiplicity of actions on the same subject matter, against the same opponent, on the same issues or multiplicity of actions on the same matter between the same parties even where there exists a right to begin the action.b.Instituting different actions between the same parties simultaneously in different court even though on different grounds.c.Where two similar processes are used in respect of the exercise of the same right for example a cross appeal and respondent notice.d.Where an application for adjournment is sought by a party to an action to bring another application to court for leave to raise issue of fact already decided by court below.e.Where there no iota of law supporting a court process or where it is premised on recklessness. The abuse in this instance lies in the inconvenience and inequalities involved in the aims and purposes of the action.f.Where a party has adopted the system of forum-shopping in the enforcement of a conceived right.g.Where an appellant files an application at the trial court in respect of a matter which is already subject of an earlier application by the respondent at the Court of Appeal.h.Where two actions are commenced, the second asking for a relief which may have been obtained in the first. An abuse may also involve some bias, malice or desire to misuse or pervert the course of justice or judicial process to the irritation or annoyance of an opponent.”

17. The respondent further contends that the trial court considered all the relevant material which was placed before it and also considered the overriding objective of the Civil Procedure Act (“the Act”) as well as other relevant provisions of law in arriving at the decision it did, and which decision is proper and ought not to be disturbed.

18. I have considered the contending submissions and authorities cited on appeal. I have likewise re-evaluated the material placed before the trial court. It is clear that the appeal fundamentally lies against the trial court’s decision to strike out the appellant’s suit. I will therefore deal with the six (6) grounds of appeal contemporaneously.

19. As earlier noted, the application which gave rise to the impugned ruling sought to have the appellant’s suit struck out for not disclosing a reasonable cause of action and for being statute barred.

20. In his respective affidavits in support of the application, the respondent stated that he lodged Constitutional and Human Rights Petition No. 470 of 2017 (Stephen M Mogaka v Inspector General of Police & 5 others) against the appellant and other parties not before this court, and that the said Petition was settled on clear terms and an order issued by the Constitutional Division of the High Court on 19th November, 2018.

21. The respondent further stated in his affidavits that the appellant’s claim was lodged over three (3) years since the cause of action purportedly arose and was therefore in contravention of the timelines stipulated under Section 4(2) of the Limitation of Actions Act which requires claims arising out of contract to be brought within three (3) years of the cause of action arising.

22. The respondent states in his affidavits that ultimately, in view of the order made in the aforecited Petition, the appellant’s claim is an abuse of the court process.

23. In reply, the appellant stated that he has a reasonable cause of action against the respondent since he has not paid the outstanding sum of Kshs.1,000,000/= arising out of proceeds of the sale of the subject property and that the suit had been filed within the statutory timelines.

24. In her ruling, the learned trial magistrate made reference to the provisions of Order 2, Rule 15 (1) of the Civil Procedure Rules, 2010 which stipulates that:“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 and may order the suit to be stayed or dismissed or judgment to be entered accordingly, as the case may be.”

25. In the end, the learned trial magistrate found the appellant’s pleadings to constitute an abuse of the court process in view of the consent entered into in the Petition and on that basis, proceeded to allow the application dated 17th August, 2018 by striking out the appellant’s pleadings.

26. Upon my study of the pleadings and material which was placed before the learned trial magistrate, it is not in dispute that the parties herein were involved in the sale transaction of the subject property. It is also not in dispute that the respondent filed the abovecited Petition against the appellant and third parties in relation to a dispute and criminal proceedings arising out of the mentioned sale.

27. Upon my further study of the pleadings and material, I observed that the said Petition was settled on various terms, including a term that the respondent upon acknowledging having paid the sum of Kshs.3,070,000/= to the appellant, would pay the remaining sum of Kshs.1,000,000/= to him on or before the 15th day of December, 2018 in default of which execution would issue against the respondent.

28. From my reading and understanding of the impugned ruling, it is on that basis that the learned trial magistrate arrived at the conclusion she did on the appellant’s suit.

29. From my re-examination of the pleadings and material, it is apparent that the sum of Kshs.1,000,000/= being sought by the appellant in the suit which was struck out is the same sum which was ordered to be paid in the Petition, pursuant to the consent entered into and in the absence of payment, the appellant was at liberty to execute the same against the respondent.

30. From my further re-examination of the material, there is nothing to indicate that the consent has since been set aside.

31. In view of the foregoing circumstances, I agree with the reasoning adopted by the learned trial magistrate that the suit constituted an abuse of the court process and therefore had no proper basis in being filed.

32. To my mind, while it is apparent that the appellant could very well have a claim against the respondent for the sum of Kshs.1,000,000/= where the same has not been paid, I find that such claim ought to have been pursued through the avenue of the Petition and consent order arising therefrom, as opposed to filing a fresh suit before the subordinate court.

33. I therefore find that the action by the appellant in filing the claim subsequently amounted to a multiplicity of actions in respect to the same subject matter and hence, an abuse of the court process. In so finding, I associate myself with the reasoning taken by the court in the case of Satya Bhama Gandhi v Director of Public Prosecutions & 3 others [2018] eKLR cited in the submissions by the respondent, thus:

34. “The situation that may give rise to an abuse of court process are indeed in exhaustive, it involves situations where the process of court has not been or resorted to fairly, properly, honestly to the detriment of the other party. However, abuse of court process in addition to the above arises in the following situations:-a.Instituting a multiplicity of actions on the same subject matter, against the same opponent, on the same issues or multiplicity of actions on the same matter between the same parties even where there exists a right to begin the action.b.Instituting different actions between the same parties simultaneously in different court even though on different grounds.c.Where two similar processes are used in respect of the exercise of the same right for example a cross appeal and respondent notice.d.Where an application for adjournment is sought by a party to an action to bring another application to court for leave to raise issue of fact already decided by court below.e.Where there no iota of law supporting a court process or where it is premised on recklessness. The abuse in this instance lies in the inconvenience and inequalities involved in the aims and purposes of the action.f.Where a party has adopted the system of forum-shopping in the enforcement of a conceived right.g.Where an appellant files an application at the trial court in respect of a matter which is already subject of an earlier application by the respondent at the Court of Appeal.h.Where two actions are commenced, the second asking for a relief which may have been obtained in the first. An abuse may also involve some bias, malice or desire to misuse or pervert the course of justice or judicial process to the irritation or annoyance of an opponent.”

35. From my study of the record, there is also nothing to indicate that the learned trial magistrate overlooked any relevant statutory and/or legal provisions and principles, or that she ignored the submissions filed by the appellant.

36. Upon taking into account all the foregoing factors hereinabove, I am satisfied that the learned trial magistrate properly analyzed the material which was placed before her and arrived at a well-reasoned finding on the application and consequently, the appellant’s suit. I therefore see no reason whatsoever to disturb her finding.

37. The upshot therefore is that the appeal is hereby dismissed with costs to the respondent.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 6TH DAY OF MAY, 2022. J. K. SERGONJUDGEIn the presence of:………………………………... for the Appellant………………………………... for the Respondent