[2022] KEHC 1587 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

CIVIL APPEAL NO. 37 OF 2004

PAUL KAMANU MWANGU............................................APPELLANT

VERSUS

JOHN MUITA T/A JOMUKI ENTERPRISES.....1ST RESPONDENT

ELIJAH OMOLLO.................................................2ND RESPONDENT

(Being an appeal from the Judgement and Decree of the Principal Magistrate’s Court at Eldoret by Hon.W. N Njage in

Civil Case No. 1563 of 2003 dated 11th February 2004)

JUDGMENT

1. The Appellant herein being dissatisfied with the Ruling and decree delivered by the learned magistrate Hon. W. N Njage, has preferred this appeal citing the following grounds: -

1) The learned trial magistrate erred in law and in fact in striking out or dismissing the suit and the application for injunction without any proper or legal grounds.

2) The learned trial magistrate erred in law and in fact in holding that the said suit was res judicata in clear contravention of the law.

3) The learned trial magistrate erred in striking out the plaintiffs claim by way of a preliminary objection instead of an application under Order VI Rule 13 of the Civil Procedure Rules

4) The learned trial magistrate erred in law and in fact in misconstruing the meaning of res judicata and functus officio.

5) The learned trial magistrate erred in law and in fact in failing to properly apply the provisions of section 7 of the Civil Procedure Act and the judicial authorities brought to the notice of the court.

6) The learned trial magistrate erred in law and in fact in failing to address the merits of the case before him and thereby denying the appellant the right to be heard, audi alteram pertem.

7) The learned trial magistrate erred in failing to consider the issues raised by the appellant in reply to the preliminary objection thereby leading to a miscarriage of justice.

8) The learned trial magistrate erred in law and in fact in being biased against the appellant.

9) The learned trial magistrate erred in law and in fact in failing to uphold the rule of law thereby hindering access to justice.

10) The learned trial magistrate erred in law and in fact in arriving at a decision that is not founded in the aw of the land and not supported by any law/decision.

11) The learned trial magistrate erred in law and in fact in improperly exercising his discretion.

12) The learned trial magistrate erred in law and in fact in failing to exercise his jurisdiction as conferred by law.

13) The learned trial magistrate erred in law and in fact in arriving at a decision against the law and the evidence put before him.

14) The learned trial magistrate erred in law and in fact in assisting the respondents to abuse the law of the land by declining to hold that the case before him was proper and ought to be heard on its own merits.

15) The learned trial magistrate erred in failing and misapplying the doctrine of contempt of court in relation to the claim herein.

2. The background to the appeal is that the appellant filed a suit seeking damages for loss of user, an injunction and a declaration that sale of motor vehicle registration number KAL 538T was illegal, null and void and costs of the suit. The respondents herein raised a preliminary objection as to the competence of the suit and the court delivered its ruling on 6th February 2004 striking the suit out leading to the present appeal.

3. The appellants’ case is that the trial magistrate erred in striking out the appellant’s suit as the trial magistrate did not address himself to the principles set out or established for striking out of pleadings. He cited Yaya Towers Limited Vs Trade Bank Ltd (In Liquidation Civil Appeal No. 35 of 2000) and submitted that the issues raised were not plain and obvious issues of law so as to lead to a decision for striking out of the suit. The main point that was raised by the respondents was that the suit was res judicata and this could not be substantively sustained by way of a preliminary objection. There was need for evidence by way of an affidavit. The residents advocate made reference to a matter that existed in court but the pleadings were not before the court.

4. The appellants cited Mukisa Biscuits Manufacturing Co. Ltd. Vs West End Distributors Ltd (1969) EA 696 and submitted that the preliminary objection did not meet the threshold set out therein for a preliminary objection. It was not proper for the trial court to entertain a preliminary objection when all that was being raised or argued were facts.

5. The appellant urged that Eldoret CMCC No. 1536 of 2003 was not res judicata as there was no similarity in the parties and the dispute in question was different. Further, that there was no final determination as far as the previous decision was concerned.

6. With regard to Eldoret CMCC No. 1536 of 2003 the court was not functus officio as the matter had not been head and no determination had been made to warrant the holding of the court functus officio. That the appellant was denied an opportunity to be heard and was not supported by any facts or law. Further, there was no determination by the court in Eldoret CMCC No. 428 of 2001 in favour of the appellant therein as an objector to warrant the move to pursue contempt proceedings.

7. The appellant therefore prays that the ruling and order made on 6th February 2004 be set aside and an order be made that the appellants in Eldoret CMCC No. 1536 of 2003 be heard on merits before a competent court of jurisdiction and the motor vehicle registration no. KAL 538T kept at the police station be released to the appellant herein.

8. The respondents’ case is that the matter was res judicata. The issues in Eldoret CMCC No. 1536 of 2003 were the same as those in the objection proceedings in Eldoret CMCC No. 428 of 2001. The trial magistrate asked for Eldoret CMCC No. 428 be availed for perusal for purposes of determining the preliminary objection.

9. The respondent’s case is that the trial magistrate was entitled to determine the suit on the basis of a preliminary objection. Section 7 of the Civil Procedure Code allows for dismissal of a suit for being res judicata. The matter was determined on the basis of law and there is no evidence of bias on the part of the magistrate.

10. The sale became absolute under order 21 rule 68(2) of the Civil Procedure Rules and the decision of the lower court was sound as the suit was incompetent as issues of legality or otherwise of the attachment were to be dealt with in Eldoret CMCC No. 428 of 2001.

11. Upon perusal of the pleadings and submissions thereto I have identified the following issues for determination;

1) Whether the Preliminary Objection was merited

Whether the Preliminary Objection was merited

12. The Court of Appeal for East Africa in Mukisa Biscuit Manufacturing Ltd –v- West End Distributors Ltd (supra) (Sir Charles Newbold) stated:

A preliminary objection is in the nature of what used to be 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…..

13. There can be no doubt that a preliminary objection cannot be based on disputed facts. Was the preliminary objection based on disputed facts? I do not think so. In order to establish whether the matter was res judicata, the court file in Eldoret CMCC No. 428 of 2001 was availed to the trial court. Whereas the parties may have been different, the trial court was able to establish that there was a similarity in the substantial issues in both matters. It also established that the plaintiff was the objector in Eldoret CMCC No. 428 of 2001. The threshold for a preliminary objection was met and therefore the trial court’s decision was merited.

14. I find that the appeal is unmerited. The ruling and order made on 6th February 2004 is hereby upheld. The Appeal is dismissed with costs to the Respondents.

DATED, SIGNED AND DELIVERED AT ELDORET ON THIS 15TH DAY OF MARCH 2022.

E.K. OGOLA

JUDGE