[2022] KEHC 14523 (KLR)

West Kenya Sugar Company Limited v Attorney General & 2 others (Civil Case E981 of 2021) [2022] KEHC 14523 (KLR) (Commercial and Tax) (13 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14523 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Civil Case E981 of 2021

WA Okwany, J

October 13, 2022

Between

West Kenya Sugar Company Limited

Plaintiff

and

Attorney General

1st Defendant

Agriculture and Food Authority

2nd Defendant

Butali Sugar Mills Limited

3rd Defendant

Ruling

1. This ruling settles the application dated March 17, 2022 wherein the applicant seeks the following orders:-1. That the plaint dated December 20, 2021 be and is hereby struck out for being frivolous and vexatious and for being otherwise an abuse of court process.2. That the costs of the suit and the application be borne jointly and severally by the plaintiff and the plaintiff's advocates the law firm of Kinoti Kibe & Company Advocates, and be payable to the 3rd defendant.

2. The application is supported by the affidavit sworn by Jayantilal Gopal Patel and is based on the following grounds:-1. Firstly, the plaintiff's suit originated and sustained by the plaint herein dated December 20, 2021 is wholly res judicata. The plaintiff's whole claim has been litigated and finally determined in West Kenya Sugar Company Limited v Agricultural Fisheries and Food Authority & 11 others[2017]2. By dint of the matters above, the plaint dated December 20, 2021, sustaining the suit herein is wholly res judicata and has been filed in contravention of section 7 of the Civil Procedure Act (chapter 21 Laws of Kenya).3. The plaintiff was in any event enjoined by provisions of section 7 of Civil Procedure Act (chapter 21 of the Laws of Kenya) to plead all its claims under Petition No 26 of 2017 West Kenya Sugar Company Limited v Agricultural Fisheries and Food Authority and 11others. The said petition having been amended on February 3, 2016, again gave the plaintiff herein sufficient opportunity to include all its claims for alleged losses claimed in the instant suit, for the years 2011-2014. 4.As laid down by the Supreme Court of Kenya in Kenya Commercial Bank Limited v Muiri Coffee Estate and by the Court of Appeal of Kenya in John Florence Maritime Services v Cabinet Secretary for Transport (2015) eKLR, res judicata is a jurisdictional challenge. The Honourable Court accordingly has no jurisdiction to entertain and or hear the suit, save to strike it out with costs.5. Further, by dint of section 44 of the Evidence Act (chapter 80 of the laws of Kenya), in so far as the judgment in rem of the court of June 21, 2017 in West Kenya Sugar Company Limited vs Agricultural Fisheries and Food Authority & 11others [2017] eKLR took away from the plaintiff any right of claim for an exclusive zone, and took away from the plaintiff herein any right to claim the sugar cane of the various farmers in Malava South, Malava Central, Malava East, Malava West, Malava North, and Malava North East, as crop over which the Plaintiff could found any claim for losses, the plaintiff is by law estopped from founding any claim for losses over the same issues, as has been done in plaint dated December 20, 2021. 6.Secondly, the reliefs sought in the plaint, pleaded at paragraphs 29 and 30 with particulars thereunder, and prayer (e) of the plaint, are reliefs that are by law time barred. The losses claimed are for the period of 2011-2014, as reliefs under a written law and equitable reliefs, for alleged actions that the plaintiff was admittedly aware of in the year 2011, 2012, 2013 and 2014. The plaintiff is barred from making such claims under section 4(1) of the Limitation of Actions Act (chapter 22 of the Laws of Kenya).7. Thirdly, the plaintiff's suit originated and sustained by the plaint herein dated December 20, 2021 is in gross abuse of judicial process by reasons of:a.Reasons in grounds 1, 2, 3, 4, and 5 above.b.Knowingly and deliberately pleading issues that have already been pleaded and decided in West Kent/a Sugar Company Limited v Agricultural Fisheries and Food Authority & 11 others [2017] EKLRc.The plaintiff's present suit is a collateral challenge to the judgment of the High Court in West Kenya Sugar Company Limited v Agricultural Fisheries and Food Authority & 11 others [20171 eKLR, a court of concurrent jurisdiction. Determination of the present suit on the merits would imply this honourable court sitting on appeal of the judgment of the High Court in West Kenya Sugar Company Limited v Agricultural Fisheries and Food Authority & 11 others [20171 eKLRd.Filed suit on basis of an exclusive zone, when the plaintiff has sworn affidavits in other suits and even obtained judgment averring that no miller has exclusive zone under the law. These include: 2013 Republic v Kenya Sugar Board ex-parte West Kenya Sugar Company Limited, Kisumu High Court Civil Case No 175 of 2012 Chemelil Sugar Company Limited v West Kenya Sugar Company Limited, Bungoma Resident Magistrate's Court Civil Case No 476 of 2012 Nzoia Sugar Company Limited v West Kenya Sugar Company Limited and Kakamega High Court Civil Case No 223 of 2012 Mumias Sugar Company Limited & others v West Kenya Sugar Company Limited.e.The suit herein has been drawn on instructions of the plaintiff and signed and filed by the law firm of Kinoti Kibe & Company Advocates, the advocates who were leading the plaintiff's case in West Kenya Sugar Company_ Limited v Agricultural Fisheries and Food Authority & 11 others [20171 eKLR and who were accordingly aware:i.Of the existence of the judgment in West Kenya Sugar Company Limited v Agricultural Fisheries and Food Authority & 11 others [2017] eKLR delivered on June 21, 2017;ii.Of the fact that the High Court in West Kenya Sugar Company Limited v Agricultural Fisheries and Food Authority & 11 others [20171 eKLR determined the issue of exclusive zone, by particularly holding that the plaintiff herein did not have an exclusive zone over Malava South, Malava Central, Malava East, Malava West, Malava North, and Malava North East, and neither could the plaintiff herein found any claim for losses over the sugar cane grown in the said areas since the said sugarcane was the absolute property of the individual farmers.f)The said advocates who are now on record in the present suit accordingly in serious abuse of court process, filed the present plaint putting forward a feigned issue, and intentionally pitting the High Court herein against the High Court in Kakamega, for ends of embarrassing administration of justice.g.Filing the suit for ulterior purposes than to vindicate administration of justice. The case is filed to stifle a competitor (the 3rd defendant).h.The plaintiff and its advocates accordingly acted in gross breach of their obligations under the overriding objectives of the Civil Procedure Act (chapter 21 of the Laws of Kenya).i.The plaintiff was found culpable of being a serial abuser of judicial process by the High Court of Kenya in Republic v Agriculture Fisheries and Food Authority & 3 others Ex-Parte West Kenya Sugar Company Limited [20151 eKLR and West Kenya Sugar Company Limited v Agricultural Fisheries and Food Authority & 11 others [20171 eKLR. Under the inherent power of the court and court's obligation to protect its processes from abuse, a principle followed by the courts in inter alia Republic v Agriculture Fisheries and Food Authority & 3 others Ex-Parte West Kenya Sugar Company Limited 120151 eKLR, Muchanga Investments Limited v Safaris Unlimited (Africa) Ltd & 2othersCivil Appeal No 25 of 2002 [2009] KLR 229, Mitchell andothersv Director of Public Prosecutions and another (1987) LRC (const) 128, Stephen Somek Takwent/i & another v David Mbuthia Githare & 2 others Nairobi (Milimani) HCCC No 363 0/2009, Rev Madara Evans Okanga Dondo v Housing Finance Company of Kenya Nakuru HCCC No 262 of 2005 and Karuri & others v Dawa Pharmaceuticals Com an Limited and others 2007 2 EA 235, for ends of protecting judicial process from abuse, courts have the inherent jurisdiction to summarily strike out pleadings.j.Fourthly, the plaintiff's suit herein founded and sustained by the plaint dated December 20, 2021 is wholly founded on transgressions of the law, to wit section 7 of the Civil Procedure Act chapter 21 Laws of Kenya and Common Law.k.Accordingly, the plaintiff's whole claim borne in plaint dated December 20, 2021 ex turpi causa. The statement of the law is, ex turpi causa non oritur actio, that no man shall found a claim on transgression of the law, for ex dolo malo non oritur actio, that the courts shall not aid a perpetuation of illegalities, that it is non on behalf of a defendant that the court proceeds, but on public interest. The 3rd defendant relies on the principle in Holman v Johnson [1775-18021 All E.R. 98. l.Accordingly, the plaint dated December 20, 2021 is grossly offensive, for reasons above, that it is incapable of being saved even by amendment. The same is liable to struck out under order 2 rule 15(1)(b) for being frivolous and vexatious and (d) of the Civil Procedure Rules 2010, for being others an abuse of court process; being a suit that is wholly res judicata, a suit filed outside limitation of time, a suit filed knowingly put forward already litigated and determined matters, a suit filed on basis of exclusive zone when the very plaintiff has sworn affidavits holding the view that there are no exclusive zones, and a suit filed for collateral purpose, to unfairly scuttle the business of a competitor.m.It shall no doubt be in the interest of fair administration of justice and protection of the integrity of the honourable court to grant the reliefs of the application herein.

3. The plaintiff/respondent opposed the through the replying affidavit of its director Mr Jaswat Sing Rai who states that the plaintiff’s suit is a claim for special damages in the sum of Kshs 4,390,554,000 and general damages for the losses occasioned by the 3rd defendant’s illegal operations on account of the 1st and 2nd defendants. He further states that the plaintiffs claim has not been prosecuted as alleged by the applicant and that the petition in Kakamega was with respect to the legality of the plaintiff’s operations without a license and not for specific loss or damages suffered.

4. The application was canvassed by way of written submissions which I have considered. The main issue for determination is whether the applicant has made out a case for striking out the plaintiffs’ suit. Order 2 rule 15 stipulates as follows on striking out of pleadings: -“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; or(b)it is scandalous, frivolous or vexatious; or(c)it may prejudice, embarrass or delay the fair trial of the action; or(d)it is otherwise an abuse of the process of the court, and may order the suit to be stayed or dismissed or judgment to be entered accordingly, as the case may be.”

5. In Blue Shield Insurance Company Ltd v Joseph Mboya Oguttu [2009] eKLR the Court of Appeal stated:-“The principles guiding the court when considering such an application which seeks striking out of a pleading is now well settled. Madan JA (as he then was) in his judgment in the case of DT Dobie and Company (Kenya) Ltd v Muchina (1982) KLR 1 discussed the issue at length and although what was before him was an application under Order 6 rule 13 (1) (a) which was seeking striking out a plaint on grounds that it did not disclose a reasonable cause of action against the defendant, he nonetheless dealt with broad principles which in effect covered all other aspects where striking out a pleading or part of a pleading is sought. It was held in that case inter alia as follows:-“The power to strike out should be exercised after the Court has considered all facts, but it must not embark on the merits of the case itself as this is solely reserved for the trial Judge. On an application to strike out pleadings, no opinion should be expressed as this would prejudice fair trial and would restrict the freedom of the trial Judge in disposing the case.”We too would not express our opinion on certain aspects of the matter before us. In that judgment, the learned Judge quoted Dankwerts LJ in the case of Cail Zeiss Stiftung v Ranjuer & Keeler Ltd and others (No 3) (1970) ChpD 506, where the Lord Justice said:-“The power to strike out any pleading or any part of a pleading under this rule is not mandatory; but permissive and confers a discretionary jurisdiction to be exercised having regard to the quality and all the circumstances relating to the offending pleading.”We may add that like Madan JA, said, the power to strike out a pleading which ends in driving a party from the judgment seat should be used very sparingly and only in cases where the pleading is shown to be clearly untenable. “

6. Similarly, in Crescent Construction Co Ltd v Delphis Bank Limited [2007] eKLR, the Court of Appeal emphasized the need for a court to exercise its discretion with utmost care when faced with an application for striking out a suit as it is draconian action which may have the consequences of slamming the door of justice on the face of one party without according it an opportunity to be heard.

7. I have perused the plaint dated December 20, 2021 the plaintiffs claim against the defendants is with regard to the special damages against the defendants for the sum of Kshs. 4,390,554,000. I find that, in the circumstances of this case, the plaintiff should be given a chance to ventilate its case on its merit. As can be noted from the above cited cases, courts have held that the power to strike out the suit is a drastic step that should be used sparingly. I therefore find no merit in the defendant’s application dated March 17, 2022 and hereby dismiss it with orders that costs shall abide the outcome of the main suit.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 13TH DAY OCTOBER 2022. WA OKWANYJUDGEIn the presence of: -Mr Bwire for 3rd defendant/applicantMr Bett for 1st and 2nd defendantMs Wairimu for Kibe Mungai for plaintiff.Court Assistant- Sylvia