[2022] KEHC 2628 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITUI

HIGH COURT MISC. APPL. CASE NO. E003 OF 2021

REPUBLIC......................................................................................................APPLICANT

-VERSUS-

THE CHIEF MAGISTRATE KITUI LAW COURTS..........................RESPONDENTS

-AND-

JAMES KAMEYA MWASYA (Suing as the legal representative of the estate

of the estate ofKIVELENGE KAMEJA (DECEASED)............ INTERESTED PARTY

BENJO TRAVELLERS (K) LTD...............................................EX-PARTE APPLICANT

RULING

1. Before this court is a chamber summons application dated 29. 7.2021 which is a Judicial Review application brought under Order 53 Rule 1 Civil Procedure Rulesby Benjo Travellers (K) Ltd. the ex parte applicant here who seeks the following orders namely;

(i) Spent

(ii) That leave be granted to it to apply for Judicial Review for an order of prohibition to stop the Chief Magistrate’s court at Kitui or any other person from further proceedings and/or making any further orders relating to execution of judgement delivered on the 26th January 2021 inKitui Chief Magistrate Civil Case No. 209 of 2005(Justus Kameya Mwasya suing as legal representative of the estate of KAVILENGE KEMENJA (Deceased) versus BENJAMIN MAINA KIHORO & BENJO TRAVELLERS (K) LTD) pending the pendency of the moratorium as declared by the statutory manager of United Insurance Co. Ltd.

(iii) That the leave granted do operate as a stay of execution proceedings of whatever nature in Kitui Civil Magistrate Civil Case No. 209 of 2005 pending the hearing and determination of this suit.

(iv) That costs be borne by the interested party.

2. The exparte applicant has cited the following grounds in seeking leave to apply for the above reliefs: -

a) It claims that at all material times relevant to theKitui Chief Magistrate Civil Case No. 209 of 2005, its motor vehicle Registration No. KAK 069H was covered and/or insured by United Insurance Co. Ltd. which is now under statutory management, a statutory manager having been appointed under the provisions of Section 67 of the Insurance Act.

b) It further claims that the Statutory Manager of United Insurance Co. declared legal moratorium on 25th July, 2005.

c) It is the ex parte case that the aforesaid moratorium has been extended from time to time and the last extension was on 7th May 2019 where it claims that the extension was done pending determination of the question of validity of the pending winding up of proceedings in Nairobi High Court winding up cause No. 22 of 2006.

d) The applicant contends that Section 67 C (ii) of the Insurance Act (as amended by Insurance Amendment Act, 2019) provides that where a moratorium is declared a policy holder shall not be liable to pay any claim not payable by the insurer.

e) The Applicant contends that the Interested Party did file a suit vide Kitui CMCC No. 209 of 2005 against exparte applicant and that judgement was delivered in his favour where he was awarded Kshs. 650,000 which was upheld on appeal.

f) The exparte applicants claims that the Interested Party intends to execute and unless stay is granted it will suffer irreparably.

3. The ex parte in response to a preliminary objection raised by the Interested Party dated 26th August 2021, contends that a preliminary objection based on res-judicata cannot be raised in matters touching on judicial review because in his view Judicial Review proceedings are neither civil or criminal in nature and in that regard, he relies on Kyalo Peter Kyulu versus Wavinya Ndeti and 3 Others [2017] eKLR, and Republic versus Judicial Service Commission Ex Parte Pareno [2004] eKLR.

4. It faults the Interested Party in the P.O(Preliminary Objection) raised arguing that a Preliminary Objection should strictly be confined to pure points of law and where facts have to be ascertained to determine the same, then it fails the test. He relies on Kandara Residence Association & Anor. Versus Ananas Holdings Ltd and 4 Others [2020] Eklr AND John Ole Puley versus Jackson Karanja Muhia & 3 Others [2019] eKLR.

5. The ex parte applicant asks this court to grant it leave to seek for prohibitory order to prevent the Interested party from executing the decree passed by the respondents arguing that the same would contravene Section 67C of the Insurance Act Cap 487 (as amended by Section 5 (c) of Insurance (Amendment Act) 2019. He relies on Republic versus Senior Principal Magistrate Kiambu Law Courts and 2 Others ex parte Daniel N. Nthumbi [2011] eKLRand Republic versus Public Procurement Administrative Review Board Exparte Accounting Officer, Kenya Electricity Transmission Co. Ltd. [2021] eKLR.

6. The Interested Party has opposed this application through a preliminary objection dated 26th August, 2021 where he contends that the application before court is Res judicata because a similar application dated 4th December 2020 in this court was heard and determined. The Interested Party faults the ex parte applicant for duplicity of suit after abandoning the relief it had obtained in a similar matter cited above. He submits that a party should not be allowed to abuse court process just because Judicial Review proceedings are neither civil or criminal in nature. He relies on the decision of Republic versus City Council of Nairobi & 2 Others [2014] eKLR where it was held that a party cannot be allowed to abuse the court process by filing Judicial Review proceedings just because they could not be termed as res-judicata.

7. The Interested Party avers that the ex-parte Applicant is abusing the court process by filing multiple suits as a method of avoiding the judgement entered in his favour. He urges this court to step in and preserve the integrity of judicial system to prevent abuse of court process. In this regard, he relies on the case of Republic versus City Council of Nairobi & 2 Others (Supra).

8. The Respondents through the office of the Attorney General have also opposed this application through a replying affidavit sworn on 17th September 2021 by Annette Nyakora a State Counsel from the Office of the Attorney General.

9. The Respondent terms this application vexatious and an abuse of court process and points out that a similar application was filed vide Kitui Misc. Application No. 16 of 2020 in an application dated 4th December 2020 involving the same parties in this application.

10. The Respondent avers that on 18. 1.2021 this court granted the applicant leave to apply for prohibition and that the leave granted operated as a stay of execution.

11. It points out that the ex parte applicant did not file the substantive application within the stipulated timelines provided under Order 53 Rule 3(1) of Civil Procedure Rules & Sections 8 & 9 of the Law Reform Act.

12. The Respondent claims that the ex parte applicant filed the substantive motion belatedly after more than 3 months and that vide an application dated 22. 3.2021 he sought for extension of time but later withdrew the said application. The Respondent contend that the application dated 4th December 2020 is still pending for determination and the applicant cannot file another matter when another matter over the same issue subsists. It contends that leave cannot be granted to a party to file substantive motion three times over the same subject matter.

13. It submits that filing another application seeking another leave is an abuse of court process as leave was previously granted in Kitui High Court Misc. Application No. 16 of 2020 Benjo Travelers (K) Ltd. Versus The Chief Magistrate Kitui and Another. It urges this court to decline leave.

14. This court has considered this application for leave and the responses made by both the Respondent and the Interested Party. Two issues have emerged namely: -

(i) Whether this application is re judicata.

(ii) Whether leave should be granted to the ex parte applicant to apply for Judicial Review order of prohibition and whether the leave granted should operate as a stay of execution in Kitui Chief Magistrate Court Civil Case No. 209 of 2005.

15. (i) Whether this application is Res Judicata

This issue of Res Judicata was taken up by Respondents as a preliminary point and this court prompted them to canvass the Preliminary Objection as well as the substance of the application with a view to enabling this court render itself on both the preliminary objection and the merit as well.

16. The Interested Party and the Respondent have submitted that this application is res-judicata because this court entertained a similar application for leave vide Kitui High Court Civil Misc. Application No. 16 of 2020 (Judicial Review).

17. The doctrine of res judicata is spelt out under Section 7 of the Civil Procedure Actwhich provides as follows: -

‘‘7. Res judicata No court shall try any suit or issue in which the matter directly and substantially in issue has been 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 finally decided by such court. Explanation. (1)—The expression “former suit” means a suit which has been decided before the suit in question whether or not it was instituted before it.’’

The doctrine of res judicata is a principle that is aimed at bringing litigation to an end. The doctrine bars subsequent litigation once a court has fully adjudicated upon a matter and rendered a decision on the merits.

There are four elements which must be satisfied for the doctrine to apply.

a) A court of competent jurisdiction rendered of the prior decision.

b) The Court adjudicated upon the matter and gave a final decision on the merits.

c) The matter involved the same parties or parties ligating under the same title.

d) The issue(s) upon which the prior decision was based is substantially the same with the current issue.

18. The Interested has cited a decision in the case of Independent Electoral and Boundaries Commission versus Maina Kiai and 5 Others [2017]eKLR where the court of Appeal made a relevant observation that;

‘‘The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the spectra of being vested, haunted and hounded by issues………………..’’

19. There is no dispute that the ex parte applicant made a similar application with the present application. In the previous application to wit Kitui High Court Misc. Application No. 16 of 2020 (Judicial Review),the applicant sought leave to file a substantive motion for prohibitory orders to prohibit the Chief Magistrate’s Court at Kitui or any other person from further proceedings and/or giving further orders in execution of judgement in Kitui Chief Magistrate Civil Case No. 209 of 2005 Justus Kameya Mwasya (Suing as legal representative of the estate of Kavilenge Kamenja (deceased) versus Benjamin Maina Kihero & Benga Travellers (K) Ltd.).

20. This court entertained the application and exercised its discretion in favour of the applicant and granted it leave. It must be noted that the exercise of discretion under Order 53 of Civil Procedure Rulesis not automatic. Though an application for leave ordinarily is ex parte and can be determined ex parte the purpose for application of leave in Judicial Review Matters in the first place is meant to weed out frivolous, vexatious or hopeless applications. The requirement for leave to be obtained before an applicant goes to the substantive stage is designed to give a court a chance to peruse through application for leave and to prevent time wasting and uncertainties in which public officer or public bodies might be left as to whether to go on with an administrative action or not.

21. This court on the basis of the above, addressed its mind on what was placed before it by the ex parte applicant and rendered itself by giving it leave to file a substantive motion. Despite getting the leave, it did not act and has after the statutory period of 21days given by court ended, he has come back to this court asking for the same leave which had been granted. The question is, does res judicata apply?

22. As I have elucidated above, the doctrine of res judicata applies where the four elements listed obtains. The ex parte applicant avers that the doctrine of res judicata does not apply in Judicial Review matters because by its unique nature Judicial Review is neither civil or criminal but that position cannot be used to abuse the court process because, the question of whether or not the applicant deserved leave was an issue in the previous application and the same issue was in relation to the same subject matter (Execution of judgement in Kitui Chief Magistrate Civil Case No. 209 of 2005) and it involved the same parties. The doctrine of Res judicata does not stop a court from exercising its powers of judicial review but where a party is involved in an abuse of court process like in this instance, the discretion of this court cannot be used in his favour and to that extent the doctrine applies in this instance. This court is estoppel by law from entertaining parties over an issue that has been litigated upon and a decision rendered on it on the merit. As I have observed above, the question on whether or not to grant leave was decided with finality by this court.

23. (ii) Whether leave should be granted to the applicant.

As I have already found above, the applicant had previously approached this court and obtained leave but failed to act. He did not come for extension of time after failing to file the substantive application within the prescribed time and given by this court. When he came, he abandoned it. Here is a party who moves a court for leave and upon obtaining leave, goes to sleep. Does such a party really deserve discretion of this court? Certainly not.

24. The ex parte applicant has not given any explanation as to why it failed to file the substantive motion on time or at all lending credence to the Interested Party’s position that the ex parte applicant is simply engaged in trying to frustrate him in enjoyment of his fruits of judgement. The conduct of the exparte applicant in filing 2 identical applications one after the other shows that it is out to foster some mischief. It is in that regard that I find that the applicant is guilty of abuse of court process. In Republic versus Paul Kihara Kariuki, A.G. & 2 Others Ex parte Law Society of Kenya [2020] eKLR the court faced a matter related to multiplicity of suit observed as follows: -

‘‘The court has an inherent jurisdiction to protect itself from abuse or to see that its process is not abused. The black’s law dictionary defines abuse as everything, which is contrary to good order established by usage that is a complete departure from reasonable use. An abuse is done when one makes an excessive or improper use of a thing or to employ such thing in a manner contrary to the natural legal rules for its use. The situations 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.

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 obtained in the first.

Abuse of court process creates a factual scenario where a party is pursuing the same matter by two-court process. In other words, a party by the two court is involved in some gamble; a game of chance to get the best in the judicial process. (Emphasis added)

25. The ex parte applicant has also not demonstrated to court if the moratorium he claims was issued in 2005 is still in force and binding in law. The ex-parte applicant contends that there was an extension of the moratorium on 7th May 2019, there is however no document in support of this in the pleadings. The ex-parte applicant is not being truthful by stating that the Statutory Manager moved to court through Nairobi HCC No. 748 of 2009 and obtained express orders staying all manner of proceedings against United Insurance Company. There is no evidential evidence to support this claim, in any event the only document relating to the above cause is the court order issued in 2009.

In the case of Stephen Wasike Wakhu & Another versus Security Express Limited [2006] eKLR, the court stated as follows:

‘‘A party seeking justice must place before the court all material evidence and facts which considered in light of the law would enable the court to arrive at the decision as to whether the relief sought is available. Hence the legal dictum that ‘‘he who alleges must prove.’’

26. This court has said enough to show that the application before this court is both bad in law and lacks in merit. The same is disallowed with costs to the Respondent and the Interested Party.

DATED, SIGNED AND DELIVERED AT KITUI THIS 7TH DAY OF FEBRUARY, 2022.

HON. JUSTICE R. K. LIMO

JUDGE