Alnoor Almustaqueen General Traders Ltd v Officer Commanding Police Station, Garbatulla, Kenya Revenue Authority & Attorney General [2018] KEHC 3636 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

CIVIL CASE NO. 23 OF 2014

ALNOOR ALMUSTAQUEEN GENERAL TRADERS LTD..........................PLAINTIFF

VS

OFFICER COMMANDING POLICE STATION, GARBATULLA....1ST DEFENDANT

KENYA REVENUE AUTHORITY........................................................2ND DEFENDANT

ATTORNEY GENERAL.........................................................................3RD DEFENDANT

RULING

A Notice of Preliminary objections was raised by the Sally Kidake Advocate for the 2nd Respondent herein.  Kenya Revenue Authority to effect that this suit is res judicata, the issues having previously been fully determined in

a.  Meru H.C. Petition No. 1 of 2012; Mnoor Almustaqueen T/AGeneral Traders Ltd vs KRA & 3 others.

b.  Nyeri C.A No 2 of 2014

The office of the Attorney General the 3rd Defendant herein also filed Notice of Preliminary Objection to the effect the suit offends provisions of section 7 of the Civil Procedure Act cap 21 Laws of Kenya.  Sally Kidake on behalf of Kenya Revenue Authority swore an affidavit in support of the preliminary objections averring that the claim herein is similar to the claims in Petition No. 1 of 2012 which was heard and determined both by the High court and in Appeal No. 2 of 2014 which was preferred by Kenya Revenue Authority and the decretal sums deposited as security at Meru High Court was released to the plaintiff (Petitioner).  She averred that the suit herein offends the provisions of section 7 of the CPA which bars a court from trying a suit or issues which were directly and substantially in issue in a former suit between the same parties and is therefore Res Judicata.  Annexed to Sally Kidake’s affidavit is petition No. 1 of 2012 in which the plaintiff herein prayed for:-

a.  The release of 400 bags of sugar and Motor Vehicle Registration KBH 245 K immediately.

b.  Compensation for the loss of earning from the expected sugar sale and the Motor vehicle transport business.

c.  Alternatively if the same sugar and motor vehicle are disposed before hearing hereof the petitioner be compensated for the full value of the sugar and motor vehicle KBH 245 K and the loss of user and earning thereof.  Annexed to the affidavit is also judgment in petition No. 1 of 2012 where Lesiit J allowed prayer (iv) of (any other order for  sends of Justice) the petition and awarded damages of KSHS 1,000,000/= as 1st, 2nd and 3rd Respondents jointly and severally together with interest and costs of the suit.

The judge in that judgment said that the petitioners claim for loss of user of the vehicle, loss of profits from the goods and compensation for the same lies elsewhere and not within the constitutional petition.

The court in petition no. 1 of 2012 made a determination pursuant to Article 23(1) and 40 of the constitution and said that the petitioner claim for loss of user of the motor vehicle, loss of profits from the goods and compensation for the same lies elsewhere and not within the constitutional petition.  The judge didn’t canvas the merits and demerits of that claim and didn’t dismiss the same in the court of appeal at Nyeri – C.A.No. 2 of 2014 at page 18 paragraph 26 the judges of the court of Appeal A.Visram, Martha Koome and Otieno Odek agreed with Justice Lessit that the other heads of damages apart from the general damages for breach of 1st Respondents fundamental right to its property granted in the constitutional petition.  The court of Appeal didn’t also dismiss the plaintiffs cross appeal and didn’t canvass it on its merits and demerits.  The petition was heard by way of written submissions and it would not have been plausible to prove the losses suffered without interrogating the plaintiffs claim by way of testifying in chief and having testimony interrogated in cross examination for strict proof of the claims.

S. 7 C.P.A

The claim for loss of user of the vehicle, loss of profits from the goods and compensation was made in the petition No. 1 of 2012 but the same was not substantially and finally determined.  Both the Constitutional Court and the Court of Appeal rendered  themselves to the effect that the Constitutional Court could not properly grant general damages for claims which are of a tortious nature.

In the circumstances the preliminary objection is over ruled with costs to the plaintiff

HON. A.ONG’INJO

JUDGE

RULING SIGNED, DELIVERED AND DATED THIS 4TH DAY OF  OCTOBER 2018.

In the presence:

C/A:- Penina

Plaintiff: Mr Mbaabu Advocate holding brief for Kiome for plaintiff.

Defendant: Ms Kungu advocate for AG.  Ms Kidake for 2nd Defendant – N/A

HON. A.ONG’INJO

JUDGE

Mr Mbaabu

We pray for a date for directions.

Mr Kungu

We filed defence but have not filed documents.  We seek another date.  The 2nd defendants have complied with order II

Order

M. 8. 11. 2018 for 1st and 3rd Defendant to comply with order II and for fixing hearing.

HON. A.ONG’INJO

JUDGE