[2022] KEHC 16112 (KLR)

Shah & another v Attorney General & 5 others (Civil Suit E021 of 2021) [2022] KEHC 16112 (KLR) (8 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16112 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Suit E021 of 2021

HK Chemitei, J

December 8, 2022

Between

Zahir Ali Shah

1st Plaintiff

Alfara Nausheen Ikram

2nd Plaintiff

and

Attorney General

1st Defendant

Director of Public Prosecutions

2nd Defendant

Inspector General of Police

3rd Defendant

Director of Criminal Investigations

4th Defendant

Officer Commanding Police Station Nakuru Central Police Station

5th Defendant

Menengai Oil Refineries Limited

6th Defendant

Ruling

1. This ruling is in respect to a Preliminary Objection filed by the 6th defendant herein dated 18th August, 2021 against the plaintiffs’ suit filed vide a plaint dated 5th August 2021 on the grounds that;a.The claim offends the provisions of Rules 4 and 10 of the Constitutionof Kenya Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 on how to institute a claim for enforcement of rights and fundamental freedoms.b.The claim offends the mandatory requirements of Order 4 Rule 1(1)(f) of the Civil Procedure Rules 2010. c.This claim founded in tort and which is against Public Authorities offends the provisions of Section 3 of the Public Authorities Limitation Act Cap 39 which provides the limitation period for action against the government or local authority in action founded in tort cannot be brought after the end of twelve months from the date on which the cause of action accrued.d.This Court lacks the jurisdiction to entertain the suit as the same belongs to the magistrates’ court pursuant to section 7 of the Magistrates’ Courts Act 2015.

2. Parties agreed to dispose off the preliminary objection by way of written submissions.

6th Defendant’s Submissions 3. The 6th defendant in its submissions raised four issues for determination namely; whether the cause of action has been limited by time as provided under section 3 of the Public Authorities Limitations Act Cap 39 in which the counsel for the 6th defendant cited section 3 (1) of the said Act which provides that no proceedings founded on tort shall be brought against the government or local authority after the end of twelve (12) months from the date on which the cause of action accrued.

4. He submitted that this was a point of law and therefore the plaintiff’s suit was statutorily time barred pursuant to the provisions of the said section of the law. That this suit was filed on 6th August 2021 which entailed some twenty (20) months later from when the cause of action occurred. He placed reliance on the case of Intamba Freights S.A V Kenya Revenue Authority & 3 Others [2018] eKLR and Francis Njenga v James Muraya & Another [2021] eKLR.

5. On the second issue, whether this court lacks the jurisdiction to entertain the suit it submitted that the judicial awards in the head of malicious prosecution would not surpass the pecuniary jurisdiction of the subordinate court as provided under section 7(1) of the Magistrates’ Court Act 2015. He placed reliance on the case of Mukisa Biscuits Manufacturing Co. Ltd v West End Distribution [1969] EA 696 and submitted that jurisdiction was a point of law. He submitted further that this suit should have been filed before the Chief Magistrate Court at Nakuru which had jurisdiction to hear and determine suits of civil nature whose value does not exceed twenty (20) million shillings. The court’s attention was drawn to the case of Owners of the Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, where the court held in part that a court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.

6. On the third issue whether the claim offends the mandatory requirements of Order 4 rule 1(1) (f) of the Civil Procedure Rules 2010 the counsel for the 6th defendant submitted that in the plaint dated 5th August, 2021 there was no paragraph to the effect that there were no previous or pending suits between the plaintiff and all the defendants over the same subject matter. This was contrary to the provisions of Order 4 rule (1) (f).

7. He submitted that the suit herein was sub judice as the 1st plaintiff had filed another suit Nakuru HCCC No. E022 of 2021 over the same subject matter against the defendants. He submitted further that the plaintiffs were guilty of perjury when they averred in verifying affidavit sworn on 5th August 2021 at paragraph 3 that there was no suit pending when they knew very well that there was a separate suit file alongside the instant suit. That therefore the present suit was an abuse of the court process. The court’s attention was drawn to the case of Joseph Muiruri Mugo v County Government of Nyeri & 3 Others [2021] eKLR.

8. On whether the claim offends the provisions of Rules 4 and 10 of the Constitutionof Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 on how to institute a claim for enforcement of rights and fundamental freedoms the courts attention was drawn to the case of Kenya Commercial Bank Limited v Stage Coach Management Ltd [2014] eKLR and Space Geo Enterprises Limited v Kenya National Highways Authority [2019] eKLR.

9. In conclusion, the counsel for the 6th defendant submitted that the manner of filing this suit was so irretrievably defective that not even Article 159 of the Constitution could resuscitate it.

Plaintiffs’ Submissions 10. The plaintiffs in their submissions raised similar issues as those of the 6th defendant. The plaintiffs’ advocate concurred with the 6th defendant’s submission on the 12 months’ period within which an action on tort should brought against the government. He however submitted that the time started to run from when the accused was acquitted or charges withdrawn as against him. The plaintiffs’ advocate submitted that the criminal case was withdrawn against the plaintiffs on 12th August 2020, the suit was filed on 6th August 2021 and they therefore had up to 11th August 2021 to file the same.

11. Therefore, it was his submission that the present suit was not time barred. The court’s attention was drawn to the cases of Jacob Juma & Another v Commissioner of Police & Another [2013] eKLR which cited with the case Mbowa v East Mengo District Administration [1972] KLR ES 352, Charles Wanduto Kihoro v National Bank of Kenya Limited & Another [2004] eKLR and Caleb Othiambo Odera and 4 others v Inspector General of Police & 2 Others; National Police Service Commission & Another (Interested Parties) [2022] eKLR.

12. On the second issue, whether the court lacks jurisdiction to entertain the suit the court’s attention was drawn to the case of Captain (RTD) Charles K.W Masinde v Director of Public Prosecution & 2 Others [2021] eKLR, where the court held in part that in ordinary cases involving claims for malicious prosecution had been filed before the High Court and it found therefore that the high court had jurisdiction to determine the claim for malicious prosecution. Further, on the same issue the plaintiff’s counsel placed reliance on the cases Anthony Shiveka Alielo v Kenya Post Office Savings Bank & Another [2019] eKLR and Margaret Wairimu Gacheru & Another v Attorney General & 5 Others [2021] eKLR where the court cited the case Jaston Ongule Onyango v Attorney General & Another [2015] eKLR.

13. On the third issue, whether the claim offended the mandatory requirements of Order 4 rule (1) (1) (f) of the Civil Procedure Rules the plaintiffs’ submitted that at paragraph 38 of the plaint dated 5th August 2021 the plaintiff had made discovery of a pending suit before the Environmental and Labour Court Nakuru Case No. E7 of 2020 between them and the 6th respondent on unlawful termination of employment. That the both HCCC No. E022 of 2021 and the present suit were filed simultaneously and the case number issued by court.

14. Further, that the said cases were distinct and related to two different criminal cases giving raise to separate and distinct cause of actions. Additionally, that HCCC No. E22 of 2021 had one plaintiff whereas the present suit had two and therefore the 6th defendant’s assertions were misconceived and mischievous. He placed reliance on the case of Esther Njeri Komu v Consolidated Bank Limited & Another [2013] eKLR.

15. On the last issue, as to the provisions of rule 4 and 10 of the Constitutionof Kenya (Protection of Rights and Fundamental Freedom) Practice and Procedure Rules, 2013 on how to institute a claim for enforcement of rights and fundamental freedom the plaintiffs’ counsel submitted that the plaint in this instant suit revealed that the plaintiffs’ grievances emanated and were founded on a claim for malicious prosecution which was a plain law of tort issue hence an ordinary civil dispute. He urged the court to be guided by Article 50(1) of the Constitution on fair hearings as well as to tend to the substance of the case and its attendant to justice.

16. In conclusion, it was submitted on behalf of the plaintiffs that the present suit was competent and therefore this court had jurisdiction to hear and determine the same. In addition, that the preliminary objection herein fell short of meeting the threshold of pure point of law likely to dispose the instant suit.

Analysis and Determination 17. I have considered the preliminary objection and the submissions by both parties and the only issue is whether the preliminary objection is meritorious.

18. It is trite law that for a preliminary objection to be valid it must firstly raise a pure point of law. Secondly, the objection is argued on the assumption that all the facts pleaded by the party against whom it is raised are correct. Lastly, an objection cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.

19. In Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd [1969] EA 696, Law JA stated as follows:“So far as I’m aware, 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.”

20. In addressing the preliminary objection herein, I would first start with ground (c) and (d) since they raise a jurisdictional issue. In the said preliminary objection ground (d) seeks striking out the suit on the grounds that this Court lacks the jurisdiction to entertain the same as it belongs to the Magistrates’ court pursuant to section 7 of the Magistrates’ Courts Act 2015.

21. Having perused the plaint herein, I note indeed the plaintiffs have sought orders in form of declarations for malicious prosecution against the defendants and have pleaded particulars of malice against each of the defendants. In my view, the plaintiffs’ claim against the defendants herein is purely on the issue of unlawful arrest, detention and malicious prosecution for which this court has unlimited jurisdiction to entertain. For the said reasons ground (d) of the preliminary objection fails for lack of merit.

22. On ground (c) which seeks striking out of the suit on the ground that the same is barred under Section 3 of the Public Authorities Limitation Act Cap 39 which provides that the limitation period for action against the government or local authority in action founded on tort cannot be brought after the end of twelve (12) months from the date on which the cause of action accrued it appears that according to the plaintiffs their acquittal took place on 12th August 2020 a fact which has not been disputed by the 6th defendant and this being a claim in tort, the limitation period provided is 12 months equivalent to 1 year. Hence, it is apparent that the plaintiffs’ suit having been filed on 6th August 2021 is not time barred as contended by the 6th Defendant.

23. Further the plaintiffs could only contest the actions of the defendants upon being acquitted or the case against them being withdrawn since in a suit based on a claim for malicious prosecution, the plaintiff must establish that the prosecutions were subsequently terminated in his favour. See the case of Tobias Moinde Kengere v Postal Corporation of Kenya & 2 Others [2019] eKLR where the court stated: -“Flowing from the preceding, time for the purposes of limitation must begin to run as from the date when the plaintiff could first successfully maintain an action and the cause of action is not complete until such a time.

24. On ground (c), that the plaintiffs’ claim offends the mandatory requirements of Order 4 Rule 1(1)(f) of the Civil Procedure Rules 2010, it is noted that under paragraph 38 of the plaint the plaintiffs averred that there was a pending suit between them and the 6th respondent before the Environment and Land Court. The present suit together with HCCC No. E022 of 2021 were filed simultaneously and it would therefore not be in the interests of justice to dismiss this suit on this ground.

25. The case no HCCC E022 of 2021 though asking similar orders was filed by one plaintiff based on a different criminal matter. The most appropriate thing to do would be to consider consolidation at the point of taking directions for both matters.

26. Having come to the above conclusion this court finds that the issues raised although clothed in some legal attire, are not necessarily purely points of law. They are what I may term hybrid points which therefore renders the same insufficient to pass the legal muster as enunciated in the Mukisa Biscuits case(supra).

27. In the premises, the preliminary objection is disallowed with no order as to costs.

DATED SIGNED AND DELIVERED AT NAKURU VIA VIDEO LINK THIS 8THDAY OF DECEMBER 2022. H. K. CHEMITEI.JUDGE