[2022] KEHC 12356 (KLR)

Odanga v Kodhek & 6 others; Dentist Board (Interested Party) (Petition E402 of 2021) [2022] KEHC 12356 (KLR) (Civ) (21 July 2022) (Ruling)

Neutral citation: [2022] KEHC 12356 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Petition E402 of 2021

HI Ong'udi, J

July 21, 2022

Between

Joshua Owino Odanga

Petitioner

and

Esther Kodhek

1st Respondent

Peter Oremo Odanga

2nd Respondent

Steven Aboge Odanga

3rd Respondent

Deborah Akello

4th Respondent

Everlyn Agunja

5th Respondent

Dr. M. M. Okonji

6th Respondent

The Kenya Red Cross Society

7th Respondent

and

The Kenya Medical Practitioners and Dentist Board

Interested Party

Ruling

1. The petitioner filed the petition dated September 28, 2021 which is supported by his affidavit sworn on the same date. He seeks the following orders:-a)A declaration be and is hereby issued that the actions of the respondents jointly and severally, complained of herein above amounted to a grave violation of the petitioner constitutional rights, particularly article 20(1), (2), 24(1), 25(c), 27(4), 28, 29 and 31 of the constitution of Kenya, 2010. b)The honourable court be pleased to issue a permanent injunction prohibiting the respondents, any servants or any person acting on their behalf from interfering or in any manner whatsoever curtailing the freedom of the petitioner.c)The honourable court be pleased to award the Petitioner general damages to be assessed by the court for the infringement of the petitioners rights by the respondents, jointly and severally as particularized above.d)The honourable court be pleased to direct the Interested party to take disciplinary action against the 6th respondent as per its mechanisms and rules for professional conduct and conduct unbecoming a professional in its ranks.e)Costs of this petition.f)Interest on (c) and (e) above.g)Any other or further relief that this honourable court may deem fit to grant.

2. Together with the petition he filed a notice of motion of even date and supported by his affidavit. He seeks the following orders:-1. Spent.2. The honourable court be pleased to issue a temporary injunction restraining the respondents, their agents, servants or any person acting on their behalf or under their instructions, from approaching, coming into contact with, arresting, taking by force or in any manner whatsoever, interfering with the freedom and free movement of the applicant herein pending the hearing and determination of this application.3. The honourable court be pleased to issue a temporary Injunction restringing the respondents, their agents servants or any person acting on their behalf or under their instructions, from approaching, coming into contact with, arresting, taking by force or in any manner whatsoever, interfering with the freedom and free movement of the applicant herein pending the hearing and determination of this petition.4. This honourable court be pleased to issue a directive, compelling the interested party herein to commence disciplinary proceedings against the 6th respondent herein pending the hearing and determination of this application.5. The costs of this application be provided for.

3. The preliminary objection the subject of this ruling is raised by the 1st - 6th respondents and is dated October 2, 2021. It seeks to have the petition dated September 28, 2021 struck out with costs on the ground that:-“The entire petition is sub-judice as the petitioner instituted Milimani CMCC Civil Case E10111 of 2021: Joshua Owino Odanga vs Esther Kodhek & others on August 4, 2021 and the same issues are pending hearing and determination.”

4. The petitioner filed a replying affidavit sworn on April 28, 2022 in opposing the preliminary objection. He avers that the preliminary objection is bad in law, ill-conceived and mistaken in limine. That this suit and MCCE 10111 of 2021 before the Magistrate’s court do not in anyway offend the principles of subjudice.

5. He has deponed that though the set of facts and circumstances as well as the parties are the same, save for the interested party in the instant suit, the prayers sought are not the same. He points out that the matters are not before courts of concurrent jurisdiction. Further that the Magistrate’s court lacks jurisdiction to handle matters of constitutional interpretation which are before this court.

Parties Submissions The Respondent /applicants’ submissions 6. The respondents / applicants’ submissions are dated April 28, 2022 and filed through Chimei & co advocates. Counsel refers to Chief Magistrate’s Court Milimani CMCC Civil case No E10111 of 2021 Joshua Owino Odanga vs Esther Kodhek & otherswhich was filed on August 4, 2021. That the petitioner among others seeks the following reliefs:“A permanent injunction restraining the defendants from abducting the plaintiff for the purpose of forcefully admitting him to a mental hospital or for any other ill intended motive.”

7. He further states that on September 28, 2021 the petitioner instituted the present petition and among others he seeks the following relief:“The honourable court be pleased to issue a permanent injunction prohibiting the respondents, any servant or any person acting on their behalf from interfering or in any manner whatsoever curtailing the freedom of the petitioner”

8. Counsel therefore submits that save for a few adjustments in the prayers in this petition the parties are the same, the facts and the issues are the same and some of the prayers / reliefs are the same.

9. On whether this petition is subjudice, counsel referred to the case of Auto Terminal Japan Limited v Directorate of Criminal Investigations & another [2021] eKLR where the court observed thus:30. The guiding principles upon which courts make findings on the question of sub judice is founded in the Civil Procedure Act, cap 21 under section 6. This section provides as follows:“No court shall proceed with the trial of any suit or proceedings in which the matter 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 proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed”

10. Further reference was made to the case of Republic v Paul Kihara Kariuki, Attorney General and 2 others Ex-parte Law Society of Kenya [2020] eKLR where the court noted that while determining whether the sub-judice rule applies one should reflect on the following:“29. The uncompromising manner in which courts have consistently enforced the sub-judice rule was best explained in Thiba Min Hydro Co Ltd v Josphat Karu Ndwiga. [13] which held that it is not the form in which the suit is framed that determines whether it is sub judice, rather it is the substance of the suit, and that, there can be no justification in having the two cases being heard parallel to each other…A simple test would be whether this court can determine the issues raised in this case and allow or decline the prayers sought in these proceedings without delving into the issues pending in HCJR 010 of 2020 and that if the prayers sought are granted in the said case, whether they will have an impact on the instant suit.”

11. It is counsel’s submission that as held in the above case and as is the positon in the present case, for the doctrine of sub-judice to apply the four following principles must be present namely:a.There exist two suits filed and proceedings consecutively in different Courts;b.The matters in issue are directly and substantially the same;c.Parties are litigating under the same titles; andd.Both suits are pending.

The Petitioner/Respondent’s Submissions 12. The petitioner/respondent’s submissions are dated June 15, 2022 and were filed by Wangari, Njuguna & co advocates. Counsel opposes the preliminary objection while referring to sections 5 & 6 of the Civil Procedure Act. He goes ahead to identify the four (4) principles as follows:(i)Two or more suits running consecutively(ii)The matters in question must be directly and substantially in issue(iii)The parties must be the same litigating under the same title(iv)The courts handling the same matters must be having the jurisdiction to handle the matters in issue.

13. Counsel has referred to the case of Republic v Paul Kihara Kairuki case (supra) where the court opined thus:“At the risk of repeating myself, for the doctrine of sub-judice to apply the following principles ought to be present (a) There must exist two or more suits filed consecutively; (b) the matter in issue in the suits or proceedings must be directly and substantially the same, the parties in the suits or proceedings must be the same or must be parties under whom they or any of them claim and they must be litigating under the same title, the suits must be pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed. The mere fact that the applicant in the earlier suit is a Branch of the Law Society of Kenya, while the applicant in the instant suit is the main body does not change the situation. The branch is suing on behalf of its members. As stated earlier, should the court determine the earlier suit either way, it will render the issues in the instant suit res judicata. Put differently, the outcome of the earlier suit will apply to the entire membership of the Law society.29. The uncompromising manner in which courts have consistently enforced the sub judice rule was best explained in Thiba Min Hydro Co ltd v Josphat Karu Ndwiga,which held that it is not the form in which the suit is framed that determines whether it is sub judice, rather it is the substance of the suit, and that, there can be no justification in having the two cases being heard parallel to each other….” (Emphasis ours)

14. He further submits that the reliefs sought before the two courts are not similar. That the case before the Magistrates Court is one for defamation while the petition is for declaration of certain rights. He adds that the preliminary objection fails on the limb of concurrent jurisdiction of the courts before which the two matters are. That for the applicability of the sub-judice rule the test is whether on a final decision being reached in the previously instituted suit, such a decision would operate as re-judicata in the subsequent suit. Its his contention that owing to the varied reliefs sought,res-judicata would not arise.

15. He also relied on Kenya National Commission on Human Rights vs Attorney General: Independent Electoral & Boundaries Commission & 16 others (Interested parties) [2020] eKLR where supreme Court stated:[67] The term ‘sub-judice’ is defined in Black’s Law Dictionary 9th Edition as:“Before the court or judge for determination. “The purpose of the sub-judice rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the court process and diminish the chances of courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter. This means that when two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. A party that seeks to invoke the doctrine of re sub-judice must therefore establish that; there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives.”

16. He argues that nothing stops two suits from proceeding concurrently as long as the issues are not the same with the same end result, even if the parties in question are the same. Further he contends that even if for a good reason there is a danger of multiplicity of suits the remedy provided by law is to stay the suit that was filed later.

Analysis and determination 17. I have carefully considered the preliminary objection, replying affidavit and the arguments for and against it as set out in the submissions. The issue before this court is whether this suit is sub-judice as raised in the preliminary objection.

18. The sub-judice rule is founded on section 6 of the Civil Procedure Actwhich provides:“No court shall proceed with the trial of any suit or proceeding 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 proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.”

19. Counsel for both parties have cited relevant cases explaining what the sub-judice rule is and what needs to be proved to establish the said rule. The two cases cited ie Republic v Paul Kihara Kariuki (supra) and Auto Terminal Japan Ltd (supra) have clearly stated the four (4) principles on which this rule is set. These have been set out at paragraphs 11 & 13 of this ruling and i shall not rehash them here.

20. There is no dispute that Chief Magistrate’s Civil Suit No MCCE 10111 of 2021 was filed earlier than this petition. Its also not disputed that the facts, and circumstances of both cases are the same. The parties in both cases are the same save for the interested party in this petition.

21. I have had a chance to read the plaint before the Magistrates Court. Paragraph 38 of the said plaint reads as follows;38. The plaintiff avers that by their individual and joint deeds and actions, the defendants have violated his constitutional rights and freedoms as hereunder;a.Subjecting the plaintiff to physical and psychological torture, cruel, inhuman and degrading treatment;b.Violation of the plaintiff’s inherent right to human dignity by falsely and maliciously claiming that the plaintiff was suffering from a psychiatric disorder and should be admitted to a mental hospital; the false claim of the plaintiff suffering from a psychiatric disorder has caused the plaintiff untold distress, ridicule and loss of self-esteem as a person and in the eyes of his neighbours.c.Violation of the plaintiff’s right of movement by unlawfully preventing him from leaving his residence for a period of three hours even after it was established by the 7th defendant’s crew, the police, and neighbour’s at the scene that the plaintiff was not suffering from any psychological disorder to warrant his intended admission to Mathari Mental Hospital.d.Wrongfully and illegally causing the detention of the plaintiff.

22. In this petition at paragraph 44 underParticulars of violations of the prisoner’s human rights and fundamental freedoms the petitioner pleads as follows:a)Subjecting the petitioner to physical and psychological torture, cruel, inhuman, and degrading treatment;b)Violation of the petitioners inherent right to human dignity by falsely and maliciously claiming that the petitioner was suffering from a psychiatric disorder and should be admitted to a mental hospital, the false claim of the petitioner suffering from a psychiatric disorder has caused the petitioner untold distress, ridicule and loss of self-esteem as a person and in the eyes of his neighbors.c)Violation of the petitioners right of movement by unlawfully preventing him from leaving his residence for a period of three hours even after it was established by the 7th respondent’s crew, the police, and neighbors at the scene that the petitioner was not suffering from any physiological disorder to warrant the planned admission o Mathari mental Hospital.d)Wrongfully and illegal causing the detention of the petitioner against his will for a period of three hours on July 29, 2021.

23. In both the plaint and petition the petitioner seeks a permanent injunction, and general damages among others. The claim for damages and injunction arises from the same facts and circumstances and they can’t be separated. Filing multiplicity of suits over the same facts and circumstances is discouraged because of the embarrassing situations the courts may find themselves in. It is not only the reliefs that are considered. The court must consider what the substratum of the case is. One can’t be allowed to benefit twice from the same facts and circumstances.

24. In the circumstances of this case it is upto the petitioner to choose which case he wishes to pursue. In the meantime the best option would be to stay the proceedings herein since it is the latter of the two suits. This will allow the petitioner to proceed with the suit in the Chief Magistrate’s court until it is finalised. I therefore find that though not sub-judice there is the danger of multiplicity of suits.

25. The upshot is that this petition is stayed pending the hearing, and determination of the Chief Magistrate’s civil suit No MCCE 10111 of 2021.

26. Mention on December 15, 2022 for an update on the case before the Magistrates Court.Costs shall be in the cause.Orders accordingly.

DELIVERED, VIRTUALLY, DATED AND SIGNED THIS 21ST DAY OF JULY 2022 AT MILIMANI, NAIROBI.H. I. Ong’udiJudge of the High Court