James Gathirwa Ngugi v Multiple Hauliers (E.A),Moses Kiasalu Kilonzo & Lee Coach Services Limited [2016] KEHC 5928 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO.  658 OF 2009

JAMES GATHIRWA NGUGI ………….………………….PLAINTIFF

VERSUS

MULTIPLE HAULIERS (E.A)………………………1ST DEFENDANT

MOSES KIASALU KILONZO ………………………2ND DEFENDANT

AND

LEE COACH SERVICES LIMITED……………………….3RD PARTY

RULING

This ruling determines the plaintiff’s preliminary objection dated 3rd December 2015 and filed on 4th December 2015.  The preliminary objection seeks to have the application filed by the defendants dated 23rd November 2015 dismissed in limine for reasons that:

The application is incompetent, vexatious, misconceived and otherwise an abuse of the court process.

The application is subjudice Notice of Motion dated 8th May 2015 herein and the decree holder shall at the first instance apply for its   dismissal.

The application is further resjudicata chamber summons dated 27th January 2014 by the defendant/judgment debtors herein.

The applicants/judgment debtors herein have not satisfied the decree as between themselves and the respondent/decree holder as per the court judgment and decree herein.

The court cannot sit on an appeal on matters already adjudicated by this Honourable court.

The court is thus not properly seized with jurisdiction to grant the orders sought.

The judgment and decree of the court against the judgment debtors/applicants in favour of the decree holder/respondent’s for kshs 2,394,744. 20 plus interest and costs.

There has been no satisfaction of the said decree issued on the 13th February 2015 against the judgment debtors.

The provisions of Order 1 Rule 21 of the Civil Procedure Rules 2010 (sic).

The court is functus officio on issues between the judgment debtors/applicant and decree holder/respondent.

The multiplicity of applications by the judgment debtors/applicants herein (sic).

The application is an abuse of and a waste of the court’s judicial time and is solely meant to defeat   the overriding objective of the court as per the provisions of Section 1A and 1B of the Civil Procedure Act.

And shall pray that the application be dismisses forthwith.

The   preliminary  objection was taken on 9th December 2015 with Miss Obaga  representing  the respondent decree holder, urging the  court not  to allow the prosecution  of the application by the judgment  debtor dated  20th November 2015  as it is  resjudicata  the application  dated 27th January 2014  which was argued before Ougo J on 24th March  2014 and a ruling reserved  and rendered  together  with the judgment  on 13th February 2015. That  Honourable Ougo J stated at pages 17and 18 of her  judgment  that she could not enter judgment against  the third party in default  of defence  and that  the defence should  move the court  appropriately.

Further, that the learned judge did apportion liability and the defendants were advised on how to proceed against the third party.  That on  8th May 2015  the defendant filed an  application which  was placed before  Honourable Justice Mbogholi  who granted  counsel leave  to come on record  for the defendant  and also  ordered  for stay of execution  pending  interpartes  hearing.  That the plaintiff’s counsels were served and they did file grounds of opposition on 9th September 2015.  It was  contended  that the said  application is pending  and that it seeks the same orders  as the  orders being sought  in the application dated  20th November 2015 hence the  current  application is subjudice the application dated 8th May 2015.

Miss Obaga further  submitted that Order I Rule 21 of the Civil  Procedure Rules is  clear that if a  judgment debtor  seeks indemnity  then they have to satisfy  judgment passed against  them  first before  seeking to be indemnified  by the  third party since  there was no decree  between  the judgment debtor  and  the third party and neither was there  a decree between the plaintiff  and the 3rd party.

Counsel submitted that the previous advocates for the defendants had correctly advised    their clients to pay the decretal sum and seek indemnity from the third party but instead the defendant judgment debtor had brought several 8 applications.  She maintained  that this court was functus  officio and the  application is an abuse of  the  court process hence it  should  be dismissed  and  the  exparte orders  made  by the duty judge lifted for non disclosure.  She urged the court to allow the preliminary objection.

In response  to the preliminary objection, Miss Kisaka  counsel for the defendant judgment debtor submitted that the defendant had filed  notice of  withdrawal of the application dated 8th May 2015 in  24th November 2015. She maintained  that the defendants should only pay 50%  of  the decretal sum which  they had  issued cheques to  the decree  holder  but that the  said cheques  were rejected  and returned  asking  for the full decretal sum.

Miss Kisaka also submitted that the  delay in filing he application was occasioned  by the process of assessing  costs and urged that her  client’s  application was meritorious  hence  the preliminary  objection should be  rejected .

I have carefully considered the preliminary objection by the plaintiff /decree holder, the submissions by Miss Obaga and the response thereto by Miss Kisaka.

There are several issues for determination in the preliminary objection as raised and these are:

Whether the preliminary objection as taken was well founded.

Whether the defendant’s application dated d 20th November 2015 is res judicata the judgment of Ougo J.

Whether the application dated 20th November 2015 is subjudice the application dated 8th May 2015.

Whether the defendant   can seek indemnity from the third party under Order 1 Rule 21 of the Civil Procedure Rules before settling the decree with the plaintiff.

What orders should this court make?

Who should bear the costs of the preliminary objection?

On whether the preliminary objection(s) raised were well taken by the plaintiff/decree holder, the celebrated case of Mukisa Biscuits Manufacturing Ltd V West End distributors Ltd CA 9 of 1969[1969] EA 696 is instructive.  In that case, the Court of Appeal lay down or established what should be considered to be a preliminary objection and that the court should only consider matters of law not matters of fact.  Thus, a preliminary objection must be confined to matters of or points of law which may be argued before the court based on the assumption that all facts pleaded are correct.  In Oraro V Mbaja [2005] 1 KLR  141 Ojwang J. ( as he then was ) citing  with approval the Mukisa  Biscuit  case(supra) held as  follows;-

“ 1. A preliminary objection correctly understood, is a  point of law  which  must not be  blurred with factual  details  liable to be contested  and  in any event, to be proved through  the process of evidence.

2.  Any assertion which claims  to be a preliminary  objection, and  yet it bears s factual aspects  calling for  proof, or  seeks  to adduce evidence  for its authentication, is not, as a matter  of legal principle, a true preliminary  objection which the  court should  allow to proceed.

3. If a  matter comes before the court dressed as a” preliminary objection” it  will not come co-exist  with such factual scenarios as may lead to the  court to exercise its discretion by  virtue of Section 3A of the Civil Procedure  Act.

4.  The court’s discretion  is never exercised  just on the basis of  proposition  of law: there must be a factual situation of  which the court  takes cognizance, and  in relation to which its equitable  conscience  is exercised .

5.  It has to be appreciated that the court’s discretion  exercised by virtue  of Section 3A of the Civil Procedure  Act is  always  of for the purpose of upholding  the law as far as is  possible; and  this would require  preserving the claims  of parties  so  that they may be  heard and determined  according to  law.

6.  The applicant’s plea is that the respondent’s pleadings be terminated   in limine.  There is  no consistency between  such a prayer, which  belongs to the normal practice attending preliminary  objection(matters of law), on the one hand, and   the case  for ensuring  fair  trial  which the  applicant has  also urged.  On the other hand.”

From the above  decision, this  court has therefore  to determine  whether  issues of  Resjudicata, subjudice  and requirements  under Order 1 Rule 21  of the Civil Procedure Rules can  be raised  as preliminary objections.

In Omondi Vs National Bank of Kenya Ltd & Others [2001] KLR 579 [2001] I EA 177 it was held that:

“ The objection  as to the legal  competence  of the plaintiffs to sue  in their capacity  as directors  and  shareholders  of  the company  under  receivership) and the plea of  Resjudicata  are pure   points  of law which  if determined in the favour of  the  respondents  would conclude  the litigation  and they were accordingly well  taken as preliminary objection.  In determining  both points  the court is  perfectly  at liberty to look at the pleadings and  other relevant  matter  in its  records and it is  not necessary to file affidavit  evidence  on those  matters.  What is forbidden  is  for  counsel to take, and the  court to  purport to  determined, a point of preliminary  objection on contested  facts or in the exercise of judicial discretion and therefore  the  contention that the suit  is an  abuse of the process of the court for  the reason that the defendant’s  costs  in an earlier suit have not been  paid is not a true point of preliminary  objection because to stay or not to stay a suit  for such  reason is not  done ex debito justiciae ( as of right)  but  as a matter of  judicial discretion.”

From the above decision, I hold that the doctrine of Resjudicata as taken was properly taken in these proceedings.

However, the principle of  subjudice  would  not be a  true point of preliminary  objection  because  it invokes the  court’s  discretion to stay or not to stay the subsequent suit (or application) until the  earlier application is heard and  determined  and further, a determination  that a matter  is subjudice  does  not finally and conclusively determine  the rights between the  parties.

In Lotta V Tanaki [2003] 2 EA 556 it was held:

“  The  doctrine of Resjudicata  is  provided for  in Section 9 of  the Civil Procedure Code  of 1966 and its  object  is to bar multiplicity of suits  and guarantee finality in litigation it makes conclusive a final judgment between the same parties  or  their  privies  on the same issue by a  court of competent  jurisdiction in the subject  matter of the suit.  The scheme of Section 9 therefore contemplates five conditions which, when co-existent, will bar a subsequent suit.  The  conditions are (i) the matter  directly  and substantially in issue  in the subsequent  suit must  have been  directly  and substantially in issue  in the former suit; (ii) theformer  suit must  have been between the same parties  or privies  claiming under them (iii) the parties  must have  litigated  under  the same title in the formersuit;(iv)the court  which decided  the former suit must  have been  competent  to try the subsequent  suit; and (v) the  matter in issue must  have been  heard  and finally  decided in the former  suit.”

Having found  that  Resjudicata  was well  taken as a preliminary  point of law, the question that  follow is whether the application  dated 20th November 2015 is Resjudicata the decision of Honorable Ougo J, delivered on 13th February 2015. The object of Honourable Ougo’s judgment  that is relevant  to this preliminary  point of law  as taken  by the plaintiff is that the defendant vide a third party notice dated  16th June 2011 sought to enjoin a third party Lee Coach Services Limited the owner of KAR 129B to these proceedings.  However, despite service the 3rd party never entered appearance. The defendant therefore urged the court to find that the third party be deemed to have admitted the plaintiffs claim against it.  However, the learned judge  at page  17-18 of her judgment was categorical that third party proceedings raise questions between  the defendant  and the third party on liability  of  third parties  to make contribution or indemnity  and normally  proceed  after  the trial suit between  the plaintiff and the defendant.  She  relied on Sango Bay Estates  Ltd and Others  V Dresdner Bank  AG [1971] EA 17 and declined  to enter  judgment against  the third party  in default of defence  and ordered “ should the defendant seek to pursue  the third party for contribution in  liability they should  move the court appropriately”

The Learned Judge   proceeded at page 18 of her judgment to enter judgment for the plaintiff against the defendants jointly and severally and further ordered thus:  “Thedefendant may proceed   as provided under Order 1 Rule 21 against the third party.”

The learned  judge  had at paragraph  29 of the judgment found that  the driver of the third party’s  bus  too ought  to have exercised due care and caution  on the road  as he approached  the stationery  vehicle.  She therefore was of the view   that liability should be apportioned 50:50 between the defendants and the third party.

The plaintiff  proceeded to assess costs of the suit and  applied   for execution of  the decree which prompted  the defendants herein to lodge  an application dated  8th May  2015 seeking  to engage the  firm of Muriithi Ndonye Advocates to come  on record in the place of the firm of  Kairu Mbuthia  & Kiingati Advocates; stay of execution of the judgment  pending  hearing and determination  of the application; and that the court  do pass  half of the  judgment delivered  in 13th February  2015 to the 3rd  party  as it was  apportioned  in the said  terms of the judgment delivered  by the court.

The above application dated 8th May  2015  was filed under certificate  of  urgency  on 11th May 2015  and placed   before the  presiding  judge on 12th May 2015  who certified  the application as urgent, granted leave  for the  incoming  advocate to represent  the  defendants  and also granted  a  temporary stay of execution for 30 days  and directed   service  of the application upon the  plaintiff/respondent for interpartes  hearing on a date to be taken  in the  registry.

In the meantime, the matter went  before  Honourable  Ougo J  for  review  of her judgment  to correct  arithmetical errors  on the  awards  made and a ruling was  delivered on 16th June 2015  in favour of the plaintiff/applicant.  The application for stay and passing off 50% to the third party was served upon the plaintiff’s counsel who filed grounds of opposition on 9th September 2015.  By a notice of withdrawal of application dated 23rd November  2015  and filed on  24th November  2015  the defendants sought to  wholly withdraw their application dated 8th May 2015  and filed on 11th May 2015  against the  respondent  with no ordered as to costs.

However, there is no evidence of any endorsement by the court of the purported withdrawal of that application.  Furthermore, as correctly  submitted by  Ms Obaga, it is trite law that  an application upon which  orders  had been made and the respondent  having been served  and filed  grounds  of objection, could only be withdrawn with  leave of  court or  by consent  of both parties.  It therefore follows that the application dated 8th May 2015 is validly on record and undetermined.

On  24th November 2015  by another  application dated 20th  November, 2015  the defendants filed another  application by way of Notice of Motion, similar to the one dated 8th May 2015 save that  the prayer for coming on record  of advocate  for the defendant  was not part of the latter application.

It is that application dated 20th November 2015 which the  plaintiff respondent  contends is Resjudicata  the judgment  of Honourable  Ougo J delivered on 13th February  2015  touching on the  status of the third party and  that it is  subjudice  the application  dated 8th May 2015  hence an  abuse of the process of the court  and should therefore  be dismissed  in limine.

The general rule under Section 6 of the Civil Procedure Act is that where the court finds a matter subjudice, then it should stay the latter matter until the former matter is heard and determined. However, the situation is different where the court finds a matter Resjudicata.  To determine  the issue of Resjudicata   in this  case this court has to  read Section  7 of the Civil Procedure  Act together with Order 1  Rule 21 of the  Civil Procedure Rules for reasons   that the learned  judge Ougo  was clear that she  could not  enter judgment   against the  third  party upon being asked  by the defendant  to do so, despite   the fact that  she did apportion liability  in the ratio of 50:50 between  the defendants  and the third party.  She however entered  judgment against  the defendants  in favour of  the plaintiff and advised  the defendants  that they  could proceed  as provided  under Order 1 Rule 21 (1) of the Civil Procedure  Rules against the third party.

From the judgment of Honourable Ougo J, it is clear that she never entered any judgment in favour of the plaintiff against the third party.  It would  therefore  be impossible for this court  to pass over or ask the  third party  to settle the decree  herein in the ratio of  50:50  contribution as there is no judgment  against the third party in favour of the plaintiff.  Secondly, the Learned Judge correctly advised the defendant that it could proceed as provided for under Order 1 Rule 21(1) of the Civil Procedure Rules against the third party to recover the contribution.  Order 1 Rule 21(1) of the Civil Procedure provides:

“Where a defendant desires to claim against   another person who is already a party to the suit;

That he is  entitled to contribution or indemnity or

That he is  entitled to any relief  or remedy relating to or  connected  with the original subject matter  of the action which  is subject matter of the action which is substantially the same as  some relief  or remedy claimed by the plaintiff or

That any question or issue relating  to  or connected with the said subject  matter is substantially  the  same as  some question or issue arising between  the plaintiff and  the defendant  and should be  properly determined not  only between the plaintiff  and defendant but as  between the plaintiff and the  defendant  and such other  person or between  any or either  of them, the  defendant  may without   leave  issue and  serve on such other  person a notice making  such claim or specifying such claims  or issue .

What clearly emerges in this case is that no directions were ever given on the third party notice issued.  It is for  that reason  in my view, that the learned  Honourable Ougo J declined to enter  judgment against  the third party  since there  was no order that  the question  of indemnity between  the 3rd party  and  the defendant  be tried and  determined at the  same time  as the trial  of the action.  Neither were there any directions as to the filing of defence and any other relevant pleadings by the 3rd parties.  The question of indemnity as exemplified in Order 1 Rule 18 of the Civil Procedure Rule can only arise after judgment.  The rule contemplates that such a question may be tried at or after the trial of the suit.  Since  the  question was  not tried  at the  trial of  the suit, it follows  that the  same  can only be tried  after  the suit, and in this regard, the suit  as  against  the defendant  having   been fully determined, the  defendant can only  seek to have  that question  tried  as  between him(it) and the  third party after  settling the  judgment  in favour  of the plaintiff.  No directions were given on the liability of the third party to the plaintiff.  The defendant did not therefore seek or obtain judgment against the third party to be entered alongside judgment for the plaintiff.

Third party notice serves as a plaint or claim by defendant against third party.  The plaintiff had no claim against the third party hence he cannot enforce a judgment against the third party.  The defendant must settle the plaintiff’s claim and seek to be indemnified by the third party.  There  is no short  cut  for him  In view of the judgment  and finding by Ougo J and her refusal to enter  judgment against the  third party and in advising  defendant  to lay claim as appropriate  which part  of  judgment  has not been varied , reviewed  or  set aside, and in view of the fact  that this court   has not been  asked to review, vary or set aside  that judgment  by Honourable Ougo which was clear at pages  17-18 (material) that.

“ Third  party proceedings raise  questions between the defendant  and the third  party(sic) of liability  of third party  to make contribution or indemnity  and normally proceed  after  the trial suit (sic) between the plaintiff and the  defendant  this (sic) in essence  is a suit between  the defendant and third party ( see the case of Sango Bay Estates  Ltd and Others Vs Dresdner  Bank A.G. [1971] EA 17. ”  The third party herein was served with the third party notice but failed to file a defence.  Order 1 Rule 17 of the Civil Procedure Rules further provides that,…..  as a third party cannot be in default of defence unless he has been ordered to do so.”  Guided by this authority this court cannot in essence enter judgment against the third party in default of defence.  Should the defendant seek to pursue the third party for contribution in liability they should move the court appropriately.”

From the above  holding by Honourable Ougo J, it cannot be that  the appropriate  way of pursuing  the third  party is simply   asking this  court to order  that the  plaintiff do pursue ½ of the  decretal  from  the third party which would  in essence  defeat  the purpose  of the judgment  of Honourable Ougo J and  in effect  reviewing  it or sitting  on appeal  of the learned Judge’s  judgment  and which this court  is not sized  of the jurisdiction  to review  without being  moved by any party or sit on appeal  as that is the preserve of the Court of Appeal.

It is  for that reason, therefore  that I find the   preliminary  objection raised by  the plaintiff  to the defendant’s application  well taken and meritorious  and which  this court  has jurisdiction to hear and determine.

Accordingly, I allow the preliminary objection and dismiss the defendant’s application dated 8th May 2015 with costs to the plaintiff/decree holder.

Dated, signed and delivered at Nairobi this 19th day of January 2016.

R.E. ABURILI

JUDGE