[2017] KEHC 8676 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL DIVISION

HIGH COURT CIVIL CASE NO. 218 OF 2016

ONESMAS KAUNA MWATI ..................................................1ST APPLICANT

JEREMIAH WILLIAM SILA ..................................................2ND APPLICANT

FLORENCE NDUKU MUINDI................................................3RD APPLICANT

CHRISTOPHER KYALO KIUAI.............................................4TH APPLICANT

GABRIEL MATEI MUKUNGA.................................................5TH APPLICANT

JOSEPH MBITI KILONZO.......................................................6TH APPLICANT

ZIPPORAH MUKONYO KIMEU.............................................7TH APPLICANT

LENAH SYOMBUA.................................................................8TH APPLICANT

STEPHENE MUTISYA..............................................................9TH APPLICANT

VINCENT MWANTHI............................................................10TH APPLICANT

GABRIEL MUATHA...............................................................11TH APPLICANT

ELIJAH MUTISYA.................................................................12TH APPLICANT

ALBERT MUENDO...............................................................13TH APPLICANT

SIMON MWANGANGI...........................................................14TH APPLICANT

DAMIANA MUTISO..............................................................15TH APPLICANT

FREDRICK KIVUNZA ...........................................................16TH APPLICANT

TIMOTHY KILONZO..............................................................17TH APPLICANT

JACKSON WAMBUA...........................................................18TH APPLICANT

MWENDWA ONESMUS......................................................19TH APPLICANT

JOSEPH MUTIE...................................................................20TH APPLICANT

VERSUS

UKAMBA AGRICULTURAL INSTITUTE............................1ST RESPONDENT

STEPHENE NDAMBUKI MULI...........................................2ND RESPONDENT

ERIC MUTINDA MUTISYA.................................................3RD RESPONDENT

MARY NDINDA KIMWELE ................................................4TH RESPONDENT

RULING

1. The Plaintiff on 17th August, 2016 filed this suit together with the Notice of Motion seeking orders inter alia that leave be granted to continue with this action as a derivative action. That the dispute herein revolvesinter alia, around the properties of the 1st Defendant, Ukamba Agricultural Institute Ltd (UKAI) and whether its management Board is lawfully in office.

2. The Defendants filed a Notice of preliminary objection dated 29th September 2016 and objected to the Plaintiff’s suit and the notice of motion as the following grounds

“a. That this suit and notice of motion application thereto contain the same parties and claim as Judicial Review Miscellaneous Application No. 414 of 2015 currently proceeding before Justice Odunga, out rightly offending the provisions of Section 6 of the Civil Procedure Act.

b. That the Plaintiffs as members of the 1st Defendant were also enjoined as interested parties in Judicial Review No. 277 of 2010 where Korir J give a judgment that canvased the allegations that the 2nd to 4th Defendants were unlawfully in office. The Plaintiffs were also parties to a Civil Suit No. 4786 of 2015 in the lower court dealing with the same subject matters raised in this suit. The suit and application herein are thereforeRes judicataas itemized by Section 7 of the Civil Procedure Act and should not be tried by this Honourable court.

c. That the suit is for that matter, scandalous, vexatious, frivolous, and an abuse of the court process. It ought to be forthwith struck off.

3. The Plaintiff filed the grounds of opposition dated 9th November, 2016 in response to the preliminary objection. The said grounds are as follows:

1. The application as filed is misconceived, bad in law and an abuse of court process.

2. The company Ukamba Agricultural Institute is suffering prejudice and harm and the parties mandated to represent the company have failed/neglected/ignored to redress the grievances because they are the perpetrators compelling the Plaintiff/Applicants to bring this derivative action on behalf of the company.

3. That the Applicants/Members are entitled under the Constitution of UKAI and the Companies Act to pursue the derivative action herein.

4. The 2 Judicial Review matters mention by the Defendant are a separate cause of action from a derivative action and by their nature seek reliefs against a Public body or person acting in such capacity none of which is party in this suit.

5. As a matter of fact when the prayers herein were sought in Judicial Review Miscellaneous Civil Application No. 414 of 2015 at Nairobi Odunga, J. recused himself for lack of Jurisdiction as they are not within the ambit of Judicial Review.

6. The cause of action in CMCC. 4786/2015 UKAI vs Onesmus Mwati seeks to restrain 1st Applicant from interfering with management of UKAI and does not bear a derivative action element as herein.

7. In any event the High Court has exclusive jurisdiction to determine derivative suits as per High Court Company Rules at the time and therefore any Orders in CMCC 4786/2015 UKAI v Onesmus Mwati do not apply and are in factnull and void ab initio

4. The Defendants also filed a replying affidavit in opposition to the preliminary objection and in support of the notice of motion dated 17th August, 2016.

5. The preliminary objection canvassed by way of written submissions which I have duly considered.

6. The essence of a preliminary objection was given by Law, JA and Sir Charles Newbold P. in Mukisa Biscuits Manufacturing Co Ltd Vs West End Distributors (1969) Ea 696. At page 700, Law, JA stated that:

“…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.”

Sir Charles Newbold P. added as follows at page 701:

A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued 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.”

7. In case at hand, the preliminary objection raises matters of fact that require to be ascertained through evidence e.g who were the parties in the other suits referred to in the preliminary objection? What was the cause of action in the said suits? Judicial Review proceedings are not a bar to the filing of a civil suit. The issues of subjudice and Res judicate require the probing of evidence. Consequently, I find no merits in the preliminary objection and herein dismiss the same with costs

Dated, signed and delivered at Nairobi this 23rd day of March, 2017

B.THURANIRA JADEN

JUDGE