[2022] KEHC 13928 (KLR)

Pevans Est Africa Limited & 4 others v Nation Media Group Limited & 7 others (Civil Case E018 of 2022) [2022] KEHC 13928 (KLR) (19 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13928 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil Case E018 of 2022

JK Sergon, J

October 19, 2022

Between

Pevans Est Africa Limited

1st Plaintiff

Milestone Games Limited

2nd Plaintiff

Ronald Kamwiko Karauri

3rd Plaintiff

Nikolov Guerassim Nikolov

4th Plaintiff

Gene Grand

5th Plaintiff

and

Nation Media Group Limited

1st Defendant

John Kamau

2nd Defendant

Finance Uncovered Ltd

3rd Defendant

Paul Wafula

4th Defendant

Paul Wanderi Ndungu

5th Defendant

Google LLC

6th Defendant

Youtube LLC

7th Defendant

Google Kenya Limited

8th Defendant

Ruling

1. This ruling is the outcome of three applications. The first and motion dated February 17, 2022 filed on behalf of the 1st ,2nd and 4th defendants/applicants and the second one February 28, 2022 filed on behalf of the 5th defendant/applicant, both applications seek the plaintiffs’ suit to be struck out.

2. The aforementioned motions are supported by the grounds presented on its face and the facts stated in the affidavits of the 1st applicant’s head of legal and training, Sekou Owino and 5th applicant.

3. To resist the motions, the 3rd plaintiff/respondent swore a replying affidavit on March 11, 2022 on behalf of the respondents.

4. When the motion came up for interparties hearing before the court the parties were directed to file and exchange written submissions.

5. I have considered the grounds laid out on the face of the motion, the facts deponed in the affidavits supporting and resisting the motion, and the contending written submissions and authorities relied upon.

6. In his supporting affidavit, advocate Sekou Owino stated that on November 19, 2020, the 1st plaintiff filed a suit against the Nation Media Group Limited, the 1st defendant herein and the 5th defendant in this matter and that the suit was filed by the firm of Otieno Ogola & Company Advocates as HCC E188 of 2022 Pevans East Africa Limited v Paul Ndungu and Nation Media Group Limited.

7. The applicant avers that in HCC E188 of 2020, the plaintiffs complaint relates to the three articles published by the 1st defendant in the business daily editions of 2nd ,3rd and 1November 6, 2020 and that in the present suit, the plaintiffs’ suit is based inter alia on articles published by the 1st defendant on the dates of 8th, 9th and 16th of September 2020.

8. The above averments were echoed in the submissions of the applicants, that the respondents had stated in paragraph 41 of their supporting affidavit that there exist another suit based on the same subject matter namely HCCC No E188 of 2020 and that the plaint is accompanied by a verifying affidavit sworn by the 3rd plaintiff buttressing and confirming the veracity of the statements contained in the plaint.

9. The applicants submitted that the plaintiffs/respondents are in fact and law, estopped from bringing this suit on account of the HCC No E188 of 2020 by virtue of the doctrine of action estoppel codified by sections 6 and 8 of the Civil Procedure Act. This doctrine was enunciated by the Supreme Court of England and Wales in Test Claimants in the F11 Group Litigation v Revenue and Customs Comrs (formerly Inland Revenue Comrs) (2020) UKSC 47 at paragraph 61 as follows:“Cause of action estoppel arises where the cause of action in the later proceedings is identical to that in the earlier proceedings, the latter having been between the same parties or their privies and having involved the same subject matter. In such a case the bar is absolute in relation to all points decided unless fraud or collusion is alleged, such as to justify setting aside the earlier judgment. The discovery of new factual matter which could not have been found out by reasonable diligence for use in the earlier proceedings does not, according to the law of England, permit the latter to be re-opened. … Cause of action estoppel extends also to points which might have been but were not raised and decided in the earlier proceedings for the purpose of establishing or negativing the existence of a cause of action.”

10. The applicants aver that staying the current suit will serve no useful purpose and an order for stay of suit will amount to the court acting in vain and that it ought to be determined with finality, therefore an order striking out the pleadings filed by the plaintiffs. The applicants relied on the Rosemary Wanja Mwagiru & 2 others v Attorney General & 3 others (2013) eKLR:“A galloping litigant, moving scenes of the same forensic battle from one jurisdiction to another, engulfing nearly all institutions and means of dispute resolution either simultaneously or successively, with little or no merit, and putting a pinch of criminality on or otherwise civil dispute, must be stopped; and if a subordinate court entertains him, the High court must check it. Experience has shown some litigants who will dress up their disputes in so many garments and present them to every authority available within our national borders, and even personalities with no legal powers here, to assist in the resolution of the same dispute. They vex their opponents and everyone else they may be minded to vilify, intimidate and blackmail.”

11. In response, the respondents/plaintiffs submitted that HCCC E188 of 2020 is a distinct matter from the instant suit is a standalone matter in that it has a different subject matter and different parties save for the 1st plaintiff, 1st and 5th defendants who are parties as the rest of the parties are not party, the cause of action is against the 8 defendants and that the 2nd to 8th defendants have not been sued in HCCC E188 of 2020 and that the 2nd to 5th plaintiffs are not parties in HCCC E188 of 2020 and has no claim against any of the parties in that suit.

12. The applicants further submitted that the doctrine of sub judicedoes not cushion a party previously sued in a different pending case from being sued jointly and/or severally with others in a subsequent case, where they are jointly involved in an offense of commission and/or omission. The applicant relied on the case of Republic v Registrar of Societies –Kenya &others Ex- parte Moses Kirima & 2others (2017) eKLR the court held that:“Therefore for the principle to apply certain conditions precedent must be shown to exist: First, the matter in issue in the subsequent suit must also be directly and substantially in issue in the previously instituted suit; proceedings must be between the same parties, or between parties under whom they or any of them claim, litigating under the same title; and such suit or proceeding must pend in the same or any other court having jurisdiction in Kenya to grant the relief claimed.”

13. The respondents further relied on the case of Thika Min Hydro Co Ltd v Josphat Karu Ndwiga (2013) eKLR the court opined 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 looking at the pleadings in both cases,”

14. The respondents aver that the 1st, 2nd, and 4th defendants argument collapses in that the principle of sub judice does not talk about the prayers sought but rather the matter in issue and that the plaintiffs’ plaint is a triable issue which is on defamation against all the plaintiffs, this is a triable issue which cannot be summarily be dismissed without hearing all parties to this suit.

15. I have carefully considered the submissions of both parties as well as the relevant law. The key question is whether the current suit ought to be struck out. Order 2 rule 15 of the Civil Procedure Rules2010 provides as follows:-“15 (1)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; orb.It is scandalous, frivolous or vexatious; orc.It may prejudice embarrass or delay the four trial of the action; ord.It is otherwise an abuse of the process of the Court.”

16. The power given to Courts to dismiss a suit is one which should be exercised both cautiously and judiciously. In the case of DTDobie & Company (Kenya) Limited–vrsJoseph Mbaria Muchina&another [1980]eKLR Hon Justice Madan JA (as he then was) observed as follows:-“No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously disclose 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 full facts of the case before it.”

17. The respondents/plaintiffs argued that HCCC E188 of 2020 is separate from the instant suit because it has a different subject matter and different parties, with the exception of the first plaintiff, 1st defendant, and 5th defendant, who are parties. The cause of action is against the eight defendants, and the 2nd to 8th defendants have not been sued in HCCC E188 of 2020, and the 2nd to 5th plaintiffs have not been made parties in that case.

18. Section 6 of the Civil Procedure Act, 2010 provides that:-“No court will proceed with the trial of any suit or issue in which the matter directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them 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 determined by such court.”

19. In the case of William Charles Firyda v Lance P Nadeau & another [2015] eKLR, the Court reiterated the conditions upon which the sub-judice rule rests as follows:-“For the sub-judice rule in section 6 aforesaid to apply, there must bei.An existing suit or proceeding in which the matter in issue in the current suit is directly and substantially in issue in the previous suit or proceeding;ii.The parties in both suits must be the same or be parties under whom they or any of them claim; andiii.They should be litigating under the same title and that suit should be pending in Kenya.”

20. I have noted that Civil case Nairobi HCCC No E188 of 2020 has a different subject matter and different parties while the instant plaint involves different subject matter and different parties and for those reasons therefore the doctrine of sub judice fails in this case.

21. The importance of the subjudice principle was well captured in the case of Nyanza Garage v Attorney General Kampala HCCS No 450 of 1993:“In the interest of parties and the system of administration of justice, multiplicity of suits between the same parties and over the same subject matter is to be avoided. It is in the interest of the parties because the parties are kept at a minimum both in terms of time and money spent on a matter that could be resolved in one suit. Secondly, a multiplicity of suits clogs the wheels of justice, holding up resources that would be available to fresh matters, and creating and or adding to the backlog of cases courts have to deal with. Parties would be well advised to avoid a multiplicity of suits.”

22. It was therefore incumbent upon the defendants/applicants to place before this court materials upon which the court would be in a position to make a definite finding that in fact the issues in the two suits at this stage are similar or substantially the same. Am not convinced at this juncture that the issues in both suits are the same or are in substance the same.

23. The third ruling is predicated on the notice of motion dated May 6, 2022 taken out by the 8th defendant/applicant and supported by the grounds set out on its body and the facts stated in the affidavit of the Agnes Gathaiya the Country director of the 8th defendant. The applicant sought for an order strike out the 8th defendant from these proceedings.

24. In response to the application, plaintiffs/respondents have filed a replying affidavit of Ronald Kamwiko Karauri the 3rd plaintiff sworn on May 27, 2022.

25. The 8th defendant avers that the basis upon which Google Kenya has been sued by the plaintiffs is on an alleged subsidiary –parent relationship with the 6th and 7th defendant i.e Google LLC and You Tube LLC respectively and that it is not a subsidiary of 6th and 7th defendant but a separate and independent legal entity incorporated in Kenya.

26. The 8th defendant submitted that it is incapable of enforcing any orders issued against the 6th and 7th defendants or relating to the alleged links and content and it would be a waste of precious judicial time to proceed and issue orders incapable of being enforced.

27. The 8th defendant further submitted that they are wrongly joined as a party in these proceedings and should henceforth be discharged.

28. In response, the plaintiffs aver that there is an inextricable linkage between the 8th defendant and the 6th defendant who is the majority shareholder in the 8th defendant’s company by virtue of being a subsidiaries.

29. The plaintiffs further aver that the court may not be in a position to establish the liability or otherwise of the 8th defendant at this interlocutory stage as the involvement of the 8th defendant in this suit/matter is necessary as the relationship between the 6th and the 8th defendant forms the background of the suit herein.

30. The plaintiffs submitted that they sought an order for prohibition and damages against the 8th defendant due to the inextricable linkage between the 8th and 6th defendants and to that extend the 8th defendant is a necessary party to this suit.

31. The plaintiffs have relied on the case of VK Construction Company Ltd v Mpata Investments Ltd Nairobi HCC 257/2003, a reasonable cause of action was defined as:“a reasonable cause of action is such a factual situation as would entitle a person to obtain a remedy against another person and which has some chance of success when only the averments in the plaint are considered. In other words, the test for the reasonableness of the cause of action is the possibility of the success thereof when only the plaint is considered.”

32. I am minded that unlike where the application for striking out was made under the case of DT Dobbie Kenya Co Ltd v Joseph Mbaria Muchina & Leah Wanjiku Mbugua (1982) KLR 1 the then order VI rule 13 of the Civil Procedure Rules, the 1st defendant invoked order 1 rule 10(2) which gives the court the power either on its own motion or an application by any of the parties to a suit to strike out the name of any party improperly joined to the suit or to order any person to be joined if, in the courts view, such a person is necessary for it to adjudicate upon and settle all the questions in the suit effectually and completely. I am convinced, however, that the rationale behind the decision in the DT Dobbie & Company (Kenya) Ltd favouring sustenance rather than dismissal or striking out of a suit based on the affidavit evidence is as much relevant to an application seeking to strike out the name of a party from a suit under order 1 rule 10(2) of the rules.

33. In any event, as much as the 8th defendant cited order 1 rule 10(2), it sought to have its name struck out from the suit because ‘the suit does not raise any reasonable cause of action’ against it. Non-disclosure of a reasonable cause of action or defence in law is one of those grounds prescribed by order 2 rule 15 for striking out a suit at any stage of the proceedings. What amounts to ‘a reasonable cause of action’ in its technical sense was the central theme in DT Dobbie & Company (Kenya) Ltd and to this extent that decisions is equally relevant to the present application.

34. For all I have said I am inclined to come to the conclusion that the 1st, 2nd and 4th defendants’ motion dated February 17, 2022, the 5th defendant’s motion dated February 28, 2022 and the 8th defendant’s motion dated May 5, 2022, have no merit and are hereby dismissed with costs.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 19TH DAY OF OCTOBER, 2022. ………….…………….J. K. SERGONJUDGEIn the presence of:....................for the 1st Plaintiff....................for the 2nd Plaintiff....................for the 3rd Plaintiff....................for the 4th Plaintiff....................for the 5th Plaintiff....................for the 1st Defendant....................for the 2nd Defendant....................for the 3rd Defendant....................for the 4th Defendant....................for the 5th Defendant....................for the 6th Defendant....................for the 7th Defendant....................for the 8th Defendant