[2023] KEHC 23963 (KLR)

Wambugu v Disciplinary Tribunal of the Law Society of Kenya & another (Civil Appeal E398 of 2021) [2023] KEHC 23963 (KLR) (Civ) (19 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23963 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E398 of 2021

JN Mulwa, J

October 19, 2023

Between

John Wacira Wambugu

Appellant

and

The Disciplinary Tribunal Of The Law Society Of Kenya

1st Respondent

Monica Wanjiku Ngugi

2nd Respondent

Ruling

1. This ruling is in respect of the Application dated 13/6/2023 brought by the Appellant John Wachira Wambugu seeking Orders that:1. Spent2. That the Honourable Court be pleased to issue a temporary injunction restraining the 2nd Respondent by her advocates, auctioneer’s employees and others acting through herself from executing Order 1 of the 1st Respondent’s Application dated 15/2/2021 pending hearing and determination of this application together with HCCA NO. E020 of 2021. 3.That the issue of account reconciliation is still pending rendering the decretal sum contentious.

2. The application is based on provisions of Order 42 Rule6 and Order 51 Rule 1 of the Civil Procedure Rules, as well as Sections 1, (A), 3A of theCivil Procedure Act, upon grounds stated at its face and further supported by an affidavit sworn by the Applicant on the 13/6/2023.

3. On 26/7/2023, the Court was told that a Ruling in respect of HCCA 020/2023 was expected to have been delivered by Hon. Ongeri J on the 28/7/2023, but as at time of preparation of this ruling no such information had been provided to this court by either party.

4. Further on the 4/7/2023 the Respondents had been directed to file their responses to this application, if any, and serve within 7 days. As at 26/7/2023, no responses had been filed, and none of the Respondents attended Court for argument of the application despite having been served with both the application and the hearing notice. It is therefore, and safely to state that the application is unopposed.

5. By the application, the Court Order sought to be stayed was delivered on the 15/2/2021(exhibit “JWW1”) by the Hon. Justice Ongudi J, cited at Paragraph 2 of my ruling dated 8/6/2023. Order 1 thereof states:i.The Kshs. 2,000,000/- already deposited in Court in compliance with the Court orders of 24/2/2021 to be released to the Law Society of Kenya with immediate effect.

6. It is averred by the applicant that as at the time of filing this application, he had deposited Kshs.3,200,000/- with LSK in compliance with the Court orders issued on the 24/2/2021, and that a sum of Kshs.11,900,000/- remains in dispute as the account reconciliation is yet to be undertaken due to the 2nd Respondents reluctance and laxity to conduct the account reconciliation exercise, and for this reason, the applicant is apprehensive that execution proceedings may be instituted against him for an uncertain amount.

7. I have carefully considered the prayers sought by the applicant.Without a doubt, these are the same prayer he sought in his Notice of Motion dated 12/4/2022 whose ruling was delivered by this Court on 8/6/2023. Prayer number 3 of the said application is similar, word by word, to the prayer number (2) in the instant application. This is the main prayer in both applications.

8. In both applications, the Court is urged to issue a temporary injunction restraining the 2nd Respondent from executing Order number 1 of the Respondent’s application dated 15/2/2021 pending hearing and determination of this application, together with HCCA NO. E020 of 2021 (emphasis added). The only difference is that in the application dated 12/4/2022 at the last sentence; pending hearing and determination of this appeal, being HCCA NO. E398 of 2021.

9. The two appeals, HCCA E398/2021 and HCCA E020/2021 are in respect of the same disciplinary matters arising from the ruling of the Disciplinary Tribunal issued on the 20/7/2020 in this appeal, and on 15/6/2020 and 20/7/2020 in E020/2021. That being the position, the instant application is caught up by the doctrine of Res judicata.

10. The doctrines of Res Judicata is defined at Section 7 of the Civil Procedure Act. It provides:“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 the suit such issue has been subsequently raised, and has been heard and finally decided by such Court.”

11. From the above, four conditions must be met for the doctrine to be upheld, being1. A decision on the earlier suit has been made.2. A final Judgment on merit or order has been made.3. The involvement of the same parties, or parties in priority with the original parties.4. Decision by a competent Court.

12 .In the case Njanguv. Wambugu & another Nairobi HCCC No. 2340 of 1991 (unreported) by Kuloba J as he then was rendered that:“If parties were allowed to go on litigating forever over the issue with the same opponent before courts of competent jurisdiction merely because he gives his case some cosmetic face lift on every occasion he comes to Court, then, I do not see the use of the doctrine of res Judicata….”See also the holdings in Uhuru Highway Development Ltd –v-s Central Bank of Kenya, Exchange Bank Ltd (in Voluntary Liquidation) and Kamlesh Mansukhlal Pattni;Kennedy Mokua Ongiri –vs- John Nyazende Mosioma & Florence Nyamoita Nyasende (2022) eKLR, among others.

13. Having in mind the ruling dated 8/6/2023 which I am persuaded settled the issues in the instant application, I am not inclined to delve into the analysis and eventual determination of the application dated 13/6/2023 as all the issues raised therein were fully determined in the ruling aforestated.

14. Consequently, the application dated 13/6/2023 is struck out for being res Judicata.As the application is unopposed, there shall be no costs to the Respondents.Orders accordingly.

DATED, DELIVERED AND SIGNED IN NAIROBI THIS 19TH DAY OF OCTOBER 2023. JANET MULWAJUDGE