[2022] KEHC 16113 (KLR)

Shah v Attorney General & 5 others (Civil Suit E022 of 2021) [2022] KEHC 16113 (KLR) (8 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16113 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Suit E022 of 2021

HK Chemitei, J

December 8, 2022

Between

Zahir Ali Shah

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 August 18, 2021 against the plaintiff’s suit filed vide a plaint dated August 5, 2021 on the grounds that;a.The claim offends the provisions of Rules 4 and 10 of the Constitution of 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 of the preliminary objection by way of written submissions.

6thDefendant’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 thePublic Authorities Limitations Act Cap 39. The counsel for the 6th defendant cited section 3 (1) of the said Actwhich 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 August 6, 2021 which entailed some twenty (20) months later from when the cause of action occurred. He placed reliance on the case of Intamba Freights SA V Kenya Revenue Authority & 3 Others [2018] eKLR andFrancis Njenga v James Muraya & Another [2021] eKLR.

5. On the second issue, whether this court lacks the jurisdiction to entertain the suit the counsel for the 6th defendant 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.

6. 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.

7. On the second issue whether the claim offends the mandatory requirements of Order 4 rule 1(1) (f) of the Civil Procedure Rules2010, the 6th defendant submitted that in the plaint dated August 5, 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).

8. He submitted that the suit herein was sub judice as the plaintiff had filed another suit Nakuru HCCC No E21 of 2021 over the same subject matter against the defendants. He submitted further that the plaintiff was guilty of perjury when he averred in his verifying affidavit sworn on August 5, 2021 at paragraph 3 that there was no suit pending when he 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 ofJoseph Muiruri Mugo v County Government of Nyeri & 3 Others [2021] eKLR.

9. On the third issue whether the claim offends the provisions of Rules 4 and 10 of the Constitution of 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.

10. 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. He urged the court to struck out the present suit with costs.

Plaintiff’s Submissions 11. The plaintiff in his submissions raised similar issues as those of the 6th defendant. The plaintiff’s advocate concurred with the 6th defendant’s submission on the 12 months’ period within which an action on tort should be 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 plaintiff advocate submitted that the criminal case was withdrawn against the plaintiff on August 12, 2020, the suit was filed on August 5, 2021 and they therefore had up to August 11, 2021 to file the same.

12. 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.

13. 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 KW 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 andMargaret 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.

14. On the third issue, whether the claim offends the mandatory requirements of Order 4 rule (1) (1) (f) of the Civil Procedure Rules the plaintiff’s counsel submitted that at paragraph 38 of the plaint dated August 5, 2021 the plaintiff had made discovery of a pending suit before the Environmental and Land Court Nakuru Case No E7 of 2020 between him and the 6th respondent on unlawful termination of employment. That the both HCCC No E21 of 2021 and the present suit were filed simultaneously and the case number issued by court.

15. 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 E21 of 2021 had 2 plaintiffs whereas the present suit one 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.

16. On the last issue, as to the provisions of rule 4 and 10 of the Constitution of 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 plaintiff’s counsel submitted that the plaint in this instant suit revealed that the plaintiff’s 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.

17. In conclusion, it was submitted on behalf of the plaintiff 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 18. I have considered the preliminary objection and the submissions by both parties and the issue for determination is whether the preliminary objection herein is merited.

19. It is trite law that for a preliminary objection to be valid it firstly must 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.

20. 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.”

21. 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. Having perused the plaint herein, I note indeed that the plaintiff claim and has sought orders in form of declarations for malicious prosecution against the defendants and has pleaded particulars of malice against each of the defendants. The plaintiff’s claim in my view against the defendants herein is purely on the issue of unlawful arrest, detention and malicious prosecution for which this court has jurisdiction to entertain.

22. On ground (c) which seeks striking out of the suit on the grounds that the same is barred under Section 3 of the Public Authorities Limitation Act Cap 39 which provides the limitation period for action against the government or local authority an action founded on tort cannot be brought after the end of twelve (12) months from the date on which the cause of action accrued. Upon perusal of the court records, it is evident from a document annexed to the plaint at page 20 and the same being a letter by the 2nd defendant dated March 23, 2020 that criminal charges against the plaintiff herein was still active. Therefore, this in essence means that the plaintiff could only contest the actions of the defendants upon being acquitted or 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.

23. According to the plaintiff his acquittal took place on August 12, 2020 a fact that 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, the plaintiff’s suit having been filed on August 6, 2021 is not time barred as contended by the 6th Defendant. See the case ofTobias 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 plaintiff’s 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 plaintiff averred that there was a pending suit between him and the 6th respondent before the Environment and Land Court. The present suit together with HCCC No E21 of 2021 were filed simultaneously and in my view it would therefore not be in the interests of justice to dismiss this suit on the basis of this ground.

25. The best cause of action would be to consider consolidating them at the time of taking directions and the manner they ought to proceed.

26. Having established that this court has jurisdiction to hear and determine this suit which is a claim of malicious prosecution, this court does not find any merit in the preliminary objection and the same is hereby dismissed with no order on costs.

DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAKURU THIS 8TH DAY OF DECEMBER 2022. H. K. CHEMITEIJUDGE