Republic v Cabinet Secretary Ministry of Interior and Coordination of National Government & 2 others; Makini School Limited & 5 others (Interested Parties) [2025] KEHC 298 (KLR)

Republic v Cabinet Secretary Ministry of Interior and Coordination of National Government & 2 others; Makini School Limited & 5 others (Interested Parties) (Judicial Review Miscellaneous Application E084 of 2023) [2025] KEHC 298 (KLR) (Judicial Review) (23 January 2025) (Ruling)

Neutral citation: [2025] KEHC 298 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review Miscellaneous Application E084 of 2023

JM Chigiti, J

January 23, 2025

Between

Republic

Applicant

and

The Cabinet Secretary Ministry of Interior and Coordination of National Government

1st Respondent

The Director of Immigration Services

2nd Respondent

The Attorney General

3rd Respondent

and

Makini School Limited

Interested Party

Horace Mpanza Mthombeni

Interested Party

Jacqueleine Van Der Merwe

Interested Party

Stephanus Coetsee Izak

Interested Party

Gary Wagner

Interested Party

Nixon Bugo

Interested Party

Ruling

1. The application before this Court is dated 25th October 2023 and is brought under Order 50 rule 6, Order 53 rule 3(1) of the Civil Procedure Rules, Section 3A of the Civil Procedure Act, Section 9(3) of the Law Reform Act and Article 159 of the Constitution.

2. The application seeks the following orders;1. That this Honourable Court be pleased to enlarge the time within which the substantive motion, upon grant of leave on 3rd August 2023; should have been filed.2. That this Honourable Court be pleased to deem the Notice of Motion dated 24th October 2023 as properly filed and duly on record and issue directions thereon.3. That the costs of this application be in the cause.

3. The Ex Parte Applicants filed an application on 2nd August 2023, seeking leave to initiate judicial review proceedings concerning the 2nd Respondent’s Summons dated 31st July 2023, which were directed at several of the Applicants. Along with this, they requested that the leave granted operate as a stay of the summons and related proceedings. The Court granted the leave, allowing it to operate as a stay, and directed the Applicants to file the substantive motion within 14 days.

4. The Applicants were served with the Court's directions on 10th August 2023, at which point the 2nd Respondent is said to have suggested resolving the matter amicably and indicated that no further action would be taken regarding the summons if the issue was resolved. During this time, the Applicants' legal representatives focused on other legal matters, including defending a Constitutional Petition and a separate defamation case, which led to the delay in filing the substantive motion.

5. The Applicants’ advocate has taken responsibility for the delay, explaining that it was inadvertent and excusable. It is urged that the delay was not intentional, and that it will not prejudice the Respondents, and that denying the request for more time will result in an injustice to the Applicants. It is also emphasized that the instant judicial review proceedings stem from a genuine concern that the Applicants could be wrongfully detained or deported.

6. The Applicants requested an extension of time for filing the motion, asserting that it would not cause significant harm to the Respondents and that any inconvenience could be compensated by an award of costs. The Applicants invoked the Court's discretion under Article 159 of the Constitution, highlighting the need for substantive justice over procedural technicalities.

7. In response the Respondents filed grounds of opposition dated 5th January 2024 raising three main grounds.

8. The Respondents contend that the application is premature, incompetent and an abuse of the Court Process. They also argue that the application offends Section 8 and 9 of the Law Reform Act and that it contravenes Order 53 Rule 3 of the Civil Procedure Rules.

9. The Interested Party also filed grounds dated 13th March 2024 in opposition to the application for enlargement of time. Three (3) main grounds are raised and these include that the entire suit is res judicata as a result of the Court Order dated 18th July 2023 in Milimani High Court Petition No. E243 OF 2023 that granted space to the Ministry of Education and the Directorate of Immigrations Services to discharge their mandate.

10. The Interested Party also opposes the Applicants’ application on grounds that it offends Sections 8 and 9 of the Law Reform Act and also that it contravenes Order 53 Rule 3 of the Civil Procedure Rules.

11. The application was canvassed by way of written submissions.

12. The Applicants filed two sets of submissions dated 13th March 2024 and 6th December 2024.

13. The Applicants submit that as was held by the Court in the case of Republic vs. Public Procurement Administrative Review Board Ex parte Syner-Chemie Limited [2016] eKLR the 21-day period stipulated under Order 53 rule 3 can be enlarged by application of Order 50 rule 6. According to the Applicants this position was reiterated under Republic vs. Speaker of Nairobi City County Assembly & another Ex parte Evans Kidero [2017] eKLR.

14. The Court in Republic vs. Public Procurement Administrative Review Board Ex parte Syner-Chemie Limited (supra) is said to have also held that the use of the term “shall” in a rule does not oust the court’s jurisdiction.

15. It is the Applicant’s submission that the Respondents have neither denied nor controverted any of the averments set out in the enlargement Motion or the Supporting Affidavit thereof.

16. The Applicants submit that the advocate in conduct of the matter before this court has taken full responsibility for the failure to adhere to the timeline set by this Honourable Court and as was held by the Court in the cases of Republic vs. Speaker of Nairobi City County Assembly & another Ex parte Evans Kidero (supra) and Republic vs. Public Procurement Administrative Review Board Ex parte Syner-Chemie Limited (supra) counsel’s admitted mistake should not be visited on his innocent client.

17. It is also submitted that the Respondents have not demonstrated that they shall suffer prejudice if the enlargement Motion is allowed however the Applicants will suffer hardships if the reliefs are not granted as they are reasonably apprehensive that they will likely be detained by the 2nd Respondent and/or forcibly deported without any reasonable cause.

18. The Applicants rely on the Supreme Court case of Independent Electoral & Boundaries Commission vs Miana Kiai & 5 Others [2017] eKLR, on the essential ingredients of the doctrine of res judicata. The applicants submit that the Court of Appeal in Kenya Commercial Bank Limited vs Benjoh Amalgamated Limited [2017] eKLR held that all the ingredients of the doctrine must be proven for it to be established.

19. The applicants also rely on the case of John Florence Maritime Services Limited & Another v Cabinet Secretary Transport & Infrastructure & 3 Others (Petition 17 of 2015) [2021] KESC 39 (KLR) (Civ) (6 August 2021) where the Supreme Court stated what the Court ought to look whenever the question of res judicata is raised.

20. According to the Applicants the subject matter in Milimani High Court Constitutional Petition No. E243 of 2023 is the termination of a private service contract between the Interested Party herein and the 1st Applicant as communicated vide the letter dated 7th July 2023 while the subject matter in the instant suit is the legality and fairness of the Summons issued by the 2nd Respondent herein and dated 31st July 2023.

21. It is submitted that the Petitioners in Milimani High Court Constitutional Petition No. E243 of 2023 are minors and children of the Interested Party, while the Respondents are Makini Schools, Horace Mpanza, Catherine Njuguna, and Gary Wagner. However, the Ex parte Applicants in the present suit are Makini School Limited, Horace Mpanza, Jacqueleine van der Merwe, Stephanus Coetsee Izak, and Gary Wagner.

22. The Applicants submission is that the common denominators in the Petition and present suit are Makini Schools, Horace Mpanza, and Gary Wagner.

23. Reliance is placed in the case of John Florence Maritime Services Limited & Another v Cabinet Secretary Transport & Infrastructure & 3 Others (supra) where the Court observed that the doctrine of res judicata is based on the principle of finality which is a matter of public policy. The court also cites Mulla, Code of Civil Procedure, 18th Ed. 2012 where the authors observed that the principle of res judicata, as a judicial device on the finality of court decisions, is subject only to the special scenarios of fraud, mistake or lack of jurisdiction

24. According to the Applicants it is trite that as was held by the court in John Florence Maritime Services (supra) the doctrine of res judicata requires a final, conclusive judgment, barring subsequent proceedings involving the same issue as in a prior suit between the same parties. It is submitted that the Order in the Petition was issued at a mention where directions on filing of further affidavits and submissions, and highlighting thereof, were also issued. Further that the Petition is yet to be determined and is still subsisting, and it cannot therefore be deemed a former suit for purposes of the doctrine of res judicata.

25. It is their case that the Order was issued in a Constitutional Petition, with no remedy sought for the legality and fairness of the Summonses. Further that the issue was not up for determination in the Petition. The Applicants urge that the threat by the Interested Party and other parents to make a malicious complaint to the Department of Immigration was brought up as a secondary issue at court attendance on 18th July 2023.

26. According to the Applicants the present suit is a judicial review application, with final reliefs sought by the Ex parte Applicants vastly different from the orders sought in the Petition.

27. The Applicants rely on the case Republic vs. Chesang (Ms) Resident Magistrate & 2 Others ex parte Paul Karanja Kamunge t/a Davisco Agencies & 2 Others [2017] eKLR where the Court held that judicial review is a constitutional supervision of public authorities involving a challenge to the legal and procedural validity of a decision. Reliance is also placed on the Supreme Court case of John Florence Maritime Services (supra) where the Court is said to have held that though the court in determining a judicial review application may look at certain aspects of merit and even set aside a decision, it may not substitute its own decision on merit.

28. It is submitted that there is no concurrence of jurisdiction in this case. Further that the considerations in the Petition along with the present suit are different, as are the reliefs sought or that may be granted by both courts. The Applicants submit that the Court hearing the Petition cannot grant the orders sought in the present suit.

29. The Respondents filed written submissions dated 16th January 2024. They submit that all the provisions cited by the Applicants’ Counsel are not applicable in Judicial Review proceedings which are governed by Sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules, 2010. Further that there is no room for extension of time in Judicial Review proceedings and this court has no discretion to grant the extension.

30. They rely on the case of Nicholas Kiptoo Arap Korir Salat vs. Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR where the court set out the under-lying principles that a court should consider in exercising its discretion to extend time. The Respondents also rely on the case of Wilson Osolo vs. John Ojiambo Ochola & Another [1996] eKLR where the court emphasised that it is a mandatory requirement of Order 53 Rule 3(1) that the Notice of Motion must be filed within 21 days of the grant of leave.

31. The Respondents submit that a party cannot decide to disobey a court order and then approach the Court seeking extension of time. Further that non-compliance of a court order is not a mere technicality and cannot be cured by relying on Article 159 of the Constitution. They rely on the case of Republic vs. Linda Wanjiku & 2 Others EX Parte E.N (Applying as Father and Next of Friend of SK (Minor) [2017] eKLR where the court reiterated that non-compliance with a court order cannot be a procedural technicality.

32. The Respondents urge that the primary rule of construction in interpreting a statutory provision is literal construction. The Court must first determine the provision's meaning, as unambiguous provisions with clear legislative intent may not require aid of other rules of construction of statutes. However, courts should not strain the language of a provision to ascribe meaning that cannot be justified by the legislative words. Instead, the court should allow the lawmaker's intention to guide its interpretation.

33. Reliance is also placed in the case of Republic vs. Medical Laboratory Technologists Board ex parte Anastacia Ngithi Wahu &177 Others [2017] eKLR where the court held that the words “shall be made” under Order 53 Rule 3 (1) demonstrate the timelines are mandatory rules of procedure that ought to be strictly adhered to.

34. The Respondents also rely on the cases of Republic vs. Medical Laboratory Technologists Board Ex Parte Anastacia Ngithi Wahu & 177 Others [2017] eKLR, Republic vs. Chairman, Amangoro Land Disputes Tribunal & Another Ex Parte Alfred Ididi Eketon Ididi & Another [2015]eKLR, Republic vs. Public Procurement Administrative Review Board & Another; Mer Security & Communications System Ltd/Megason Electronics & Control 1978 (JV) & Another (Interested Parties); Ex Parte Magal Security Systems Ltd/Firefox Kenya Limited (JV) [2019] eKLR where the Courts observed that the substantive motion must be filed within the 21 day period.

35. The Interested Party in his submissions dated 6th December 2024 submits that the substantive law on res judicata is found under Section 7 of the Civil Procedure Act. He also refers to the Black’s law Dictionary 10th Edition on the definition of res judicata.

36. The Interested Party’s submission is that in order to decide as to whether an issue in a subsequent Application is res judicata, a court of law should always look at the Decision claimed to have settled the issues in question, the entire Application and the instant Application to ascertain what issues were really determined in the previous Application, whether they are the same in the subsequent Application and were covered by the Decision, also whether the parties are the same or are litigating under the same Title and that the previous Application was determined by a court of competent jurisdiction.

37. The Court in the case of E.T vs. Attorney General & Another [2012] eKLR is said to have held thus; “The courts must always be vigilant to guard litigants evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the court. The test is whether the plaintiff in the second suit is trying to bring before the court in another way and in a form of a new cause of action which has been resolved by a court of competent jurisdiction”. Reliance is also placed in the case of Richard Thairu Gachagua v Naftali Ruthi Kinyua [2019] eKLR.

38. The Interested Party also relies on the Court of Appeal case of Uhuru Highway Development Ltd – Vs – Central Bank of Kenya, Exchange Bank Ltd (in voluntary liquidation) and Kamlesh Mansukhlal Pattni where the Court held that there must be an end to interlocutory applications as much as there is an end to litigation.

39. It is submitted that a Decision of the court, unless set aside or quashed in a manner provided for by the law, must be accepted as incontrovertibly correct. Further that these principles would be ‘substantially undermined’ if the Court were to revisit them every time a party is dissatisfied with an Order and goes back to the same Court particularly when there is a change of a Judicial Officer in the Court station.

40. The Interested Party urges that in the plea of res judicata only the actual record, that the issue has been decided upon, is relevant not what material was before the Court. It is further urged that even if the reasoning given in the earlier Decision was wrong, the matter cannot be re-opened by way of an Application.

41. Further that the binding force of such Orders depends upon the general principles of law. The Interested Party submits that if it were not binding, there would be no end to litigation. It is submitted that the principles of res judicata apply to a matter decided in an earlier suit and upon its general principles it also applies to proceedings in the same suit as well.

42. The Interested Party submits that a consideration of the Applicant’s pleadings leaves no doubt that action commenced are in respect of the same or a substantially similar cause of action in the Nairobi High Court Constitutional Petition No.E243 of 2023 where the 3rd and 4th Ex parte Applicants are parties claiming under the 1st Applicant.

Analysis & Determination 43. I have reviewed the arguments presented by both parties regarding the extension of time to file the substantive Notice of Motion. It is important to note that there is no clear consensus on whether the 21-day period specified in Order 53 Rule 3 of the Civil Procedure Rules, 2010, can be extended under Order 50 Rule 6, which allows for the enlargement of time. Some courts have taken a strict approach, interpreting the time limits for filing the substantive motion as mandatory and not subject to extension.

44. However, I align myself with the position expressed in Republic vs Speaker of Nairobi City County Assembly & another Exparte Evans Kidero [2017] eKLR and Republic vs Public Procurement Administrative Review Board Exparte Syner – Chemie Limited [2016] eKLR, which holds that the constitutional provisions on fair administrative action, access to justice, and substantive justice, as outlined in Articles 47, 48, and 159 of the Constitution, take precedence over the timeframes set in delegated legislation.

45. Additionally, it is a general principle of statutory interpretation that unless the enabling Act explicitly permits it, delegated legislation cannot override any Act or general legal rule (see Bennion on Statutory Interpretation, Fifth Edition, section 50). In this case, the same delegated legislation (Civil Procedure Rules) that sets the timelines for filing substantive Notices of Motion also allows for an extension of that time under Order 50 Rule 6, as confirmed by the Court of Appeal in Wilson Osolo vs John Ojiambo Ochola & the Attorney General CA No. 6 Nairobi of 1995, where it was stated:“It was a mandatory requirement of Order 53 Rule 3(1) of the Civil Procedure Rules then (and it remains so now) that the notice of motion must be filed within 21 days of the grant of such leave. Since no such notice of motion was apparently filed within 21 days by 15th February 1985, there was no proper application before the Superior Court. However, this 21-day period could have been extended by a reasonable period had there been an application under Order 49 of the Civil Procedure Rules.”

46. The Supreme Court in the case of George Kang’ethe Waruhiu vs Esther Nyamweru Munene & Another (2021) eKLR observed that the principle of extension of time is an equitable remedy, available at the discretion of the court only to a deserving party. The Court further held that a party seeking an extension of time bears the burden of establishing, to the court's satisfaction, whether the court should exercise its discretion to grant the extension. This decision is to be made on a case-by-case basis, considering factors such as the presence of a reasonable cause for the delay, whether granting the extension would cause prejudice to the respondents, whether the application was made without undue delay, and in certain cases, the potential public interest in granting the extension. Additionally, the Supreme Court emphasized the importance of the Applicants fully disclosing and explaining the entire period of delay to the court.

47. In the instant matter, the Counsel for the Applicants concedes that his failure to file the substantive judicial review Notice of Motion Application within 21 days was not deliberate and the same is regrettable. He blames the same on the fact that he had thought that the 2nd Respondent would not pursue the matter further as an officer of the 2nd Respondent had intimidated that if the parents were able to amicably resolve their grievances the Department of Immigration Services would not act in furtherance of the Impugned Summons.

48. Counsel also depones that upon this intimation and the pendency of High Court Constitutional Petition No.E043 OF 2023-Dena Atieno vs. Horace Mpanza & 3 Others and Milimani Chief Magistrate’s Civil Case No. E3304 of 2023-Makini School Limited & Horace Mpanza v. Nixon Bugo there occurred a lapse of time within which the substantive motion ought to have been filed.

49. I note that the Applicants filed their substantive motion on 25th October 2023 which was around 2 months after the date directed by this Court. The Court in its Ruling of 3rd August 2023 while granting leave directed the Applicants to file their substantive motion within 14 days. I find a period of two (2) months delay to amount to inordinate delay.

50. However, I take note that the mistake was by the Applicants’ counsel, and not the Applicants. As such, in the prevailing circumstances, the mistake of counsel ought not to be visited upon the litigants.

51. The issue of res judicata is also raised by the Interested Party. It is urged that the Court on 18th July 2023 conclusively dealt with the issues in question before this Court.

52. Section 7 of the Civil Procedure Act on res judicata, reads as follows:“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 such issue has been subsequently raised, and has been heard and finally decided by such Court.”

53. The doctrine of res judicata may be pleaded by way of estoppel so that where a judgment has been given future and further proceedings are estopped. The rationale for the doctrine of res judicata exists to protect public interest so that a party should not endlessly be dragged into litigation over the same issue or subject matter that has otherwise been conclusively determined by a court of competent jurisdiction.

54. Res judicata is typically raised as a defense to a lawsuit or cause of action when the legal rights and obligations of the parties have already been settled by a prior judgment, which may have addressed both legal and factual questions between the parties. In other words, res judicata can be successfully invoked as a defense if the issues in dispute in the earlier litigation or suit were between the same parties as in the current suit; the issues were directly or substantially the same in both cases; and they were conclusively determined by a court with proper jurisdiction.

55. The Court of Appeal in the case of The Independent Electoral and Boundaries Commission vs. Maina Kiai & 5 others, [2017] eKLR, held that:“Thus, for the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must be satisfied, as they are rendered not in disjunctive but conjunctive terms;a)The suit or issue was directly and substantially in issue in the former suit.b)That former suit was between the same parties or parties under whom they or any of them claim.c)Those parties were litigating under the same title.d)The issue was heard and finally determined in the former suit.e)The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.”

56. The Court went on to state on the role of the doctrine:“The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as a pragmatic and commonsensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and fora, to obtain at last, outcomes favourable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute or calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice.”

57. This court finds that the requirements of Section 7 of the Civil Procedure Act have not been met as Nairobi High Court Constitutional Petition No. E243 of 2023 is not between the same parties as those in the current suit. Further the issues in question before this Court were never conclusively determined by a court of a competent jurisdiction. In light of the above the ground of res judicata fails.Orders:a.The Applicants’ Notice of Motion dated 25th October, 2023 is allowed in terms of prayer 1 and 2. b.The Respondents shall file and serve their responses if any to the application within 14 days of service.c.The Applicant shall thereafter file and serve its submissions within 7 days of service.d.The Respondents shall thereafter file and serve their submissions within 7 days of service.e.The submissions shall be limited to 7 pages each.f.The matter shall be mentioned on 18. 3.2025 for further directions.g.Directions b and d above shall apply to the interested party.h.No order as to costs.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 23RDDAY OF JANUARY 2025B. J. M. CHIGITI (SC)C. JUDGE