[2022] KEHC 13366 (KLR)

Yego & 134 others v Rono & 3 others (Civil Suit 18 of 2020) [2022] KEHC 13366 (KLR) (4 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13366 (KLR)

Republic of Kenya

In the High Court at Eldoret

Civil Suit 18 of 2020

EKO Ogola, J

October 4, 2022

Between

Daniel Kiptanui Yego & 134 others

Applicant

and

Benjamin Rono

1st Respondent

Francis Sitienei

2nd Respondent

Wilson Kosachei

3rd Respondent

Sirikwa Squatters Self Help Group

4th Respondent

Ruling

1. What is pending before this Court is the 1st - 3rd Defendants’ Preliminary Objection dated 25th March 2022. The defendants raised a preliminary objection seeking that the application dated 17th March 2022 and the entire suit be dismissed on the following grounds;1. That this Honourable court lacks the jurisdiction to hear and determine the application dated 17th March, 2022 for reason that;a)This Honourable court lacks supervisory and appellate jurisdiction to re-open and/ or revisit and/or intervene on the proceedings already determined (vide a ruling dated the 9th March, 2021 by Hon. Lady Justice Hellen Omondi), a court of equal or co-ordinate jurisdiction pursuant to Article 165 of the Constitution of Kenya, 2010. The application invites a judge of equal jurisdiction to sit on appeal over the orders of a judge of equal jurisdiction. There is no such jurisdiction in law.b)This Honourable court lacks jurisdiction to determine issues raised in the application as the said issues are res judicata. The ruling dated 18th September,2020 having been reviewed/set aside on the 9th March,2021 and the Applicants’ only remedy lies on an appeal to the Court of Appeal.c)This Honourable court lacks jurisdiction to grant the interim orders sought in the application as the same are not anchored in a substantive suit and a court of law cannot act in a vacuum or act in vain.d)This Honourable court lacks jurisdiction to grant the orders sought at an interlocutory stage since they are permanent in nature and there will be nothing left to be determined in the substantive suit.2. That this Honourable court is functus officio with regard to the application for reason that the ruling dated 18th September,2020 was set aside on the 9th March,2021 and therefore it doesn’t exist. In law you cannot reinstate what has ceased to exist.3. That the application is vexatious, fatally defective, a non-starter, bad in law, brought in bad faith and otherwise a total abuse of court process, misuse of judicious time and it ought to be struck out in limine with costs.4. That the Plaintiffs have not exhausted the internal dispute resolution mechanism before filing this matter before court. The suit was therefore premature as it had not exhausted the internal/domestic procedures in what is called the doctrine of exhaustion.Consequently, the Litigation is for striking out in Limine.5. That therefore the application before this court is fatally defective and offends the doctrine of exhaustion of dispute resolution mechanism provided by the Constitution of Sirikwa Squatters Group and as a result the suit herein is bad in law and is for dismissal without further much ado. In law where there is a clear procedure to seek redress that procedure must be strictly followed. See the case of Speaker of the National Assembly v James Njenga Karume[1992] eKLR where the court held:In our view, there is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. We observe without expressing a concluded view that order 53 of the Civil Procedure Rules cannot oust clear constitutional and statutory provisions ”6. That the Plaintiffs herein have acted ultra vires the Constitution of the Sirikwa Squatters Group wherein the issues of election of office bearers are to be dealt with. They having not acted within the Sirikwa Squatters Group Constitution then the entire acts and filings are ultra vires and therefore null and void ab initio.7. That the Plaintiffs have not exhibited their register of membership to the Sirikwa Squatters Group or evidence of subscription to the membership and not being members then it follows in law that they have no locus standi to agitate or to litigate in the internal matters of Sirikwa Squatters Group.8. That the entire suit is a total abuse of the court process as the Plaintiffs are dangling a forged and/or revoked certificate of registration to the Sirikwa Squatters Group before court and therefore acting illegally and in an illegality. Illegality is an illegality. No amount of arguments (even if argued until cows come home) will correct it. It is a nullity, null and void ab initio. It amounts to nothing and the suit grounded on it will fall. See the case of Benjamin Leonard Macfoy -vs- United Africa Co. LTD (1961)2 ALL ER 1169, Lord Denning held as follows“if an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse”

1st – 3rd Defendant’s/Applicant’s Case 2. The Applicant’s case is that the Plaintiffs’ application dated the 17th March,2022 reveals that the said application seeks the Court to grant orders not anchored on the substantive suit on one hand while on the other they seek the court to delve into a ruling dated the 18th September,2020 already set aside by Hon. Lady Justice Hellen Omondi vide a ruling dated the 9th March, 2021. The Plaintiff application doesn’t seek review but rather enforcement of orders already set aside and that would practically and for all purposes amount to this Honourable court sitting on an appeal over a decision made by a court of similar and/or of equal jurisdiction. The issues with regard to the ruling dated the 18th September 2020 are res judicata the said ruling having been set aside on the 9th March,2021 and does not exist and this Honourable court is thus functus officio in that aspect. A party unhappy with the setting aside ought to be either reviewing those orders or pursuing an appeal to the Court of Appeal.

3. The Applicants cited Independent Electoral & Boundaries Commission vs Maina Kiai & 5 Others [2017] eKLR which addressed the issue of res judicata. The Applicants stated that the 1st, 2nd and 3rd defendants have already litigated with the Plaintiff and the orders had been set aside to pave way for the main suit only for them to be confronted with another application which purport to enforce the orders of the 18th September,2020 which orders were set aside and did not exist.

4. They further raised the issue of the locus standi of the Plaintiffs, stating that 1st Plaintiff was suspended as confirmed in his pleadings/plaint and he has never presented himself to the Sirikwa Squatters group for purposes of lifting of the said suspension. He has purported to recruit the “other Plaintiffs” whom he now purportedly represents in the pleadings before court. The Plaintiffs jointly and severally lack the foundational basis to institute the instant proceedings. The 1st to the 3rd defendants’ view is that the proceedings before court have been instituted by busy bodies in bad faith and there is no authority to act that has been presented before court by the 1st Plaintiff allowing him to act on behalf of the other Plaintiffs. The Plaintiffs have no Locus Standi and/or capacity to institute this suit and hence the suit is fatally defective, incompetent and should be struck out together with the application dated the 17th March,2022. They stated that this suit is ultra vires the Constitution of Sirikwa Squatters Group for reason that it is inviting the court to meddle with the affairs of the group by Litigants who are not elected and are not paid up members and by-passing the internal procedures provided for in the Sirikwa Squatters Group Constitution.

5. Sirikwa Squatters Group is governed by a constitution which provides for internal dispute resolution mechanism.. However, in contravention of the said constitution the Plaintiffs have sought to rush to court in order to avoid and/or defeat the said process. This suit together with the application therein therefore offends the doctrine of exhaustion of dispute resolution mechanism provided for by the Constitution of Sirikwa Squatters Group. The Applicants cited Speaker of National Assembly v Karume [19921 KLR 21 the Court of Appeal in support of this submission.

6. The Applicants submitted that allowing the application is equivalent to granting substantive orders in an interlocutory application and assuming the court would hear the main suit there would be nothing left to be heard as the Plaintiffs will have through the back door gained control of a group wherein they are non-members. They cited Deoray vs State of Maharashtra & Others in support of this submission.

7. The Applicants maintained that the preliminary objection should be allowed on three grounds; first on the failure to exhaust internal procedures provided for in the Sirikwa Squatters Group Constitution in what is called the doctrine of exhaustion including the issue herein being an election in to office issue, in which the Group Supreme document provides procedures for resolution through Annual General Meeting or Special General Meeting of the group pursuant to Limb 8(b) (ii)(c) of the Group Constitution on General meetings

Respondents’ Case 8. The Respondents opposed the application and filed submissions dated 29th June 2022. They submitted that the Ruling dated 9th March 2021 did not deal with any of the prayers sought in their application dated 17th March 2022. The issue of court's jurisdiction does not arise. Further, they contended that the objector does not say what issues in the application dated 17th March 2022 are 'res judicata'. The prayers in the motion dated 11th June 2020 which led to the ruling dated 18th September were;That the lst-3rd Respondents be compelled to surrender and hand over all the books, records and bank accounts of Sirikwa Squatters Group to the Interim officials namely; David Kiptanui Yego (Chairman) William Melly (Treasurer) and William Serem (Secretary).That upon such handing over the interim officials be mandated to convene and call a general election of Sirikwa Squatters Group within 3 months as per the Group's constitution.There be an order barring the defendants/Respondents from renewing the certificate of registration of Sirikwa Squatters Group.The Respondents submitted that these prayers are not similar to the prayers contained in the motion dated 17th March 2022 in any way.

9. The Respondents submitted that the Ruling dated 9th March 2021 reviewed the Ruling dated 18th September 2020 conditionally. One of the conditions in clause (iii) of the ruling was not complied with in that the defence and counter-claim were not filed within two days but they were filed on 18/3/2021 nine days after the ruling. No leave was sought to file them out of time. The Ruling therefore stands pursuant to clause (iii) of the ruling dated 9/3/2021. Even if the court reviewed the Ruling, the matters reviewed do not affect or are not similar to the prayers in the motion dated 17th March 2022 and therefore they are not res judicata.

10. The Respondents submitted that the suit is about leadership of Sirikwa Squatters Group. There are two certificates of Registration issued, one to the Plaintiffs/Applicants in 2006 No.3708087 and the other No.3708146 issued in 2017 to the defendants/Respondents. The Plaintiffs/Applicants were elected validly while the defendants/Respondents have never called a meeting in which they can claim to have been elected. The issuance of the 2 certificates is the subject revolving around the two groups jostling over the leadership of Sirikwa Squatters Group. Either one is genuine and the other is not. This is proof that the orders sought in the motion dated 13/3/2022 are well anchored in the main suit herein.

11. On whether this court lacks jurisdiction to grant the orders sought at an interlocutory stage since they are permanent in nature, the Respondents submitted that the prayers sought in the motion dated 17th March 2022 are asking for or seeking interim orders pending inter-partes hearing. Prayer 2 seeks suspension of the certificate of Registration No.3708146 held by the defendants/Respondents because it was fraudulently obtained and the defendants/Respondents have continued renewing the same through fraud and that is the gist of the said application. Suspension is not final but interim pending hearing. All the other prayers 3,4,5 ask for interim orders. It follows that if the court is to grant all the prayers Nos.1-5, the same will be interim and final order will be made after the inter-partes hearing.

12. The Respondents admitted the ruling of 9th March 2021 was reviewed but that the reviewing or setting aside was conditional. The Respondents did not comply with the conditions and the defence was filed 9 days later, therefore the ruling of 18th September 2020 stands. Secondly, even if this court were to hold and find that the application dated 18th September 2020 does not exist, the subject of the motion dated 17th March 2020 is the double registration of Sirikwa Squatters Group and this was not subject in the application resulting in the ruling of 18th September. There is no link between the rulings and therefore the court has jurisdiction to hear and determine the application dated 17th March 2022.

13. It is appreciated that internal dispute resolution mechanism is a good way of solving disputes but there must be a provision for that in the constitution of the Group. The Group's constitution does not make provision for resolution of disputes internally and hence the option open to parties is court. Further, this matter has extended to the criminal jurisdiction or dimension in that the 1st Plaintiff/Applicant and another namely William Kiptanui Melly are facing Criminal charges in Eldoret C.M.C.CR Case No.1172 of 2017 . Matters of forgery of Certificate and other criminal aspects may not be handled through the internal disputes resolution mechanism.

14. The current officials of the Plaintiff are the founding members of Sirikwa Squatters Group having registered it in 2006 and issued with Certificate of Registration No.3708087. They were again re-elected in December, 2020 pursuant to this Honourable court's Ruling dated 18/9/2020. The defendants/Respondents have not applied to set it aside or appeal it. This court will look at and consider the two Certificates of Registration No.3708087 and 3708146, analyse their acquisition and determine which of the two is genuine. This is the main issue in this suit. Once this is determined, the court will find it very easy to decide the suit.They submitted that the preliminary objection ought to be dismissed with costs.

Issues for determination whether the preliminary objection is merited 15. The case of Mukisa Biscuits Manufacturing Ltd vs West End Distributors (1969) EA 696 is notorious on the issue of what constitutes a preliminary objection where their Lordships observed thus:“----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 a contract giving rise to the suit to refer the dispute to arbitration”.In the same case Sir Charles Newbold, P. stated:“a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and on occasion, confuse the issue, and this improper practice should stop”.

16. It is clear that a preliminary objection should be based on pure points of law which do not require ascertainment of facts or exercise of judicial discretion. The nature of the preliminary objection filed herein is quite peculiar in that the Applicants have stated the points of law and then proceeded to state the facts behind the points in the objection to the extent of including authorities and referring to their bundle of documents. That notwithstanding, the court has distilled the following points of law as arising in the Preliminary Objection;a.Whether this court lacks jurisdiction to determine the application dated 17th March 2022. b.Whether this court is functus officio with regard to the applicationc.Whether the issues raised in the application dated 17th March 2022 are res Judicatad.Whether the application is defective for failure to exhaust the internal dispute resolution mechanisme.Whether the Plaintiffs acted ultra viresf.Whether the Plaintiffs have locus standi

Whether this Court lacks Jurisdiction to determine the application dated 17th March 2022 17. The locus classicus case on the question of jurisdiction is the celebrated case of the Owners of Motor vessel Lillian ‘S’ vs Caltex Kenya Limited. [1989] KLR 1, where the Court held:“Jurisdiction is everything. Without it, a Court has no power to make one more step. Where a Court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A Court of Law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

18. The Applicants’ submission is that the application dated 17th March 2022 seeks to grant orders that would seek the court to delve into the ruling dated 18th September 2020 which was set aside vide a ruling dated 9th March 2021. It is the Applicant’s case that the Plaintiff’s application seeks enforcement of orders already set aside. To ascertain this, the Court will have to delve into the issue of ascertainment of facts and this therefore disqualifies this particular point as a point of law in a preliminary objection.

Whether the issues raised in the Application dated 17th March 2022 are Res Judicata 19. The Applicants stated in its objection that the issues raised in the application are res judicata; that the issues had been determined by a court of competent jurisdiction. The Applicants have however left it to the court to determine exactly what these issues are and how they were determined. There is no clarification on what issues are res judicata and it is my view that there is a thin line between what counts as ascertainment of facts, which if required would render certain points of the preliminary objection moot.

20. The ruling dated 18th September 2020 is quite consequential in determining whether there were issues that were determined already. A perusal of said ruling reveals that the following issues were determined. The 1st-3rd Respondents were to surrender and hand over all books, records and bank accounts of Sirikwa Squatters Group to the interim officials being the Plaintiffs herein.

The interim officials were to call a general election of the group within 3 months.

An order barring the defendants from renewing the certificate of registration

The ruling dated 9th March 2021 issued orders that resulted in the determination of these issues; The 1st, 2nd and 3rd defendants’ statement of defence and counterclaim be deemed to be filed and served upon payment of requisite fees.

Service of the said statement of defence and counterclaim

Setting aside of the ruling dated 18th September 2020

Costs

Setting down of the matter for case management

21. Basically, the import of the ruling dated 9th March 2021 is that the ruling dated 18th September 2020 and all consequential orders therein were set aside. However, the same were conditional on service of the defence and counterclaim. The Respondents contend that the conditions therein were not complied to and consequently the ruling of 18th September stands.

22. At this juncture, to determine this point the court would have to ascertain certain facts such as whether there was compliance and in the premises, the point of res judicata as a pure point of law ceases to exist. This ground of the preliminary objection therefore fails.

Whether the application is defective for failure to exhaust the internal dispute resolution mechanism 23. The Applicant contends that the constitution of the society provides for an alternative dispute resolution mechanism. However, for the court to establish the same it would have to go into ascertainment of facts and the constitution will have to be produced as evidence. It is therefore clear that this is not a pure point of law.

Whether the plaintiffs acted ultra vires 24. The Applicants contend that the Plaintiffs acted ultra vires the constitution of the group. In order to determine this the court would have to delve into the facts before it and thus the same cannot be determined as a pure point of law.

Whether the plaintiffs have locus standi 25. The dispute arises from the issue of leadership of the squatters’ group. In order to determine who has locus, the court will have to address the facts therein with regard to the register of membership and subscriptions. It follows that this is not a point of law.

26. For the reasons above the Preliminary Objection is unmerited. The same is dismissed with costs in the cause.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 4TH OF OCTOBER 2022. E. K. OGOLAJUDGE