Republic v Kenya Revenue Authority, Investigating Officer, E Khaguli, T Atemo, John Njiraini & L Malinda exparte Paul Makokha Okoiti [2018] KEHC 8015 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO. 340 OF 2017 CONSOLIDATED WITH JR 351 OF 2011

REPUBLIC ………………………………..............................................APPLICANT

VERSUS

KENYA REVENUE AUTHORITY ……………........………………RESPONDENT

1. INVESTIGATING OFFICER

(MR CHEGE MACHARIA)

2. MRS E. KHAGULI

3. MRS T. ATEMO

4.   JOHN NJIRAINI

(COMMISSIONER GENERAL KRA)

5.    MRS L. MALINDA

PAUL MAKOKHA OKOITI……………....…..............………EXPARTEPARTIES

RULING

1. This ruling is dual based.  It determines  similar  applications  filed in  JR  351/2011 and  JR 340/2013 namely, applications dated  12th June  2017; 4th April  2017 and  28th September  2017 between   the same parties.  It was agreed that this court hears all the applications together and the ruling in  this matter do apply  to JR 351/2011.

2. The  applications  dated  4th April  2017 and  12th June 2017 are filed by the applicant herein whereas  the application dated  28th September 2017 was filed  by the respondent seeking to strike out the two applications  filed by the applicant  and for this court to declare the applicant as a vexatious litigant  for   consistently allegedly abusing the court process by bringing  the  same  applications  which are dismissed by the court  before the  same  court.

3. The application dated 4th April 2017 seeks from this court orders that judgment/ruling made by justice Weldon Korir on 11th December  2014  be set aside, that the judgment/ruling  made by Justice Weldon Korir on  21st May  2015  be  set aside; and that costs  of the application.  The application is predicated  in the grounds that: the document required by the applicant to enable  the prosecution of the case has now been partly fulfilled and  was voluntarily  given by the  respondent which means  that the counsel was not representing the  respondent (sic); that the cases  have  to be reviewed, since the  impending (sic) documents  are now  partly given and the others  are  also expected  to be given on  request; and that the law  must  be followed to the later(sic) and a public document that was used to sack the applicant. Cannot be denied to the applicant.

4. The application  by way of chamber summons  which  is brought  under sections 3 and 3A of the Civil Procedure Act, Order 45  of the Civil  Procedure Rules  and  all other enabling  provisions  of the law  is also supported  by the affidavit  sworn on  4th April  2017 by the exparte applicant Paul Makokha Okoiti wherein  he  deposes that he now  has the  copies of the documents given by the respondent and which were part of the demand  that the other cases were mishandled  because  the  judge failed  to see the implication of missing documents which were fundamental to the issues in dispute; that he need to have the case  restores  so that  he can  proceed to prosecute  it now that the  respondent  is prepared to give the  necessary  documents; that  he requested  for further  documents  from the respondent  and  I believe  they  are going to supply the same; and that this court is urged to proceed  expeditiously  so that the  applicant is freed, after being  tied down  for so long.

5. In the application dated 12th June  2017  the applicant seeks for  orders that the Director of Criminal Investigations do file the  result for investigation requested by the applicant over the  destruction  of Kenya  Revenue Authority documents; and  costs be in the cause.  In the said application, the applicant claims that he had been accused of destruction of official documents  which are  in court  hence he  has to clear  his name.  That he  had to write to  the  Director of Public  Prosecutions  over the issue  and that the Director of Public  Prosecutions directed the applicant to liaise with the Directorate of Criminal Investigations  on the same  but that despite liaising with the Directorate of Criminal Investigation to investigate his alleged destruction of  documents    and  provide him with  the  result, he  has been  unable  to get the  same  even  after sending  a reminder  to the  Directorate of Criminal Investigation as shown by annexed letters.  That the applicant is still in need of the said documents to clear his name and that even if charges  are necessary, it be  done so that  the law is respected.

6. The respondent filed a preliminary objection to the application dated 4th April  2017.  The Directorate of Criminal Investigation  despite being  served  with the application  dated  12th June  2017  neither entered an appearance nor filed any response to the  application.

7. The  respondent  filed a  notice  of motion dated 28th  September, 2017  raising  preliminary objection to the applicants  application dated 4th April 2017 seeking that the same be  dismissed  in limine  and that the applicant be barred from  filing any further  documents  or open any new  file between the  same  parties  on the same issues, other than Employment and Labour Relations Court Miscellaneous  25 of  2013  unless with leave of court;  that the applicant be held  to be in contempt of court and  that costs be awarded to the respondent.

8. The grounds  upon which  the  application is based are that:

1) The applicant has abused the court process by instituting multiple suits  on the same  issue in several different court.

2) That in every instance  the  respondent  has been forced to  file responses, make submissions and  court appearances  to defend the same issues which have already been determined  several times;

3) That the applicant  indulges in forum  shopping;

4) That the applicant  is in contempt  of the court orders issued by Justice Mbaru  by way of a  judgment delivered on  24th October 2016 which were reinforced by the ruling of Justice Nderi  Nduma  on 1st September 2017;

5) That despite being  advised  otherwise, the exparte  applicant has been making personal attacks on the respondents officers and  counsel  on record  and this has put  all such officer on personal defence   in the multiple  suits  instituted.

6) That in total, the exparte  applicant had filed seven(7) suits against the same respondent over the same subject matter namely:

i. HC Miscellaneous Application 351/2011

ii.ELRC NO.  25/2013

iii. JR 340/2013

iv.JR  117/2015

v. JR  300/2016

vi.JR 13/2016

vii.CMCC 4201/2017 where the respondents counsel Janet Lavuna is sued.

9. It is claimed that unless the applicant is restrained by the court, he will continue to abuse the court process, waste judicial time and cause unnecessary damage to the reputation of every judicial officer who declines to grant him orders in his litigations application.

10. The application is further supported by the affidavit sworn by Janet Lavuna advocate reiterating the grounds above.

11. The respondent’s counsel  emphasized  that in JR  351/2011, in a ruling  delivered  on 10th February  2012,  Honourable Majanja J found that Kenya Revenue Authority had supplied the applicant  with relevant documents  and advised the applicant  to proceed  and  prosecute  his Employment  and Labour Relations Court case but that he never heeded  to the  advise  and filed two application seeking to set aside Honourable Majanja’s  determined on 9th May 2014  and  20th January  2017  and that in the  latter ruling the court ruled that the applicant  was in  danger of being declared  a vexatious  litigant  obsessed with the issue of documents and avoiding the merits of this case.  That in Employment and Labour Relations Court 25/2013 he refused to set down the matter for hearing before Honourable Justice  Maureen Onyango  and instead  proceeded to file other  suits  in other courts.

12. That in JR 340/2013 the applicant  sued officials of the respondent  personally and on 21st May 2014  Honourable Korir J dismissed  the suit upon which the applicant sought to set aside that decision but on 11th December 2014 the application was  dismissed.

13. That in JR 117/2015 Honourable Odunga J dismissed his application  on the ground  that the applicant had  the  benefit  of sound  advise  by the court but had chosen to ignore the same.

14. That in Employment and Labour Relations Court case No.13/2016 Honourable Mbaru J directed the applicant to cease writing, communicating and or addressing the respondent and its  officers  directly  on matters  relating to his former  employment  that  he ceased  on 3rd February 2009 but that he  has disobeyed that order and  continued writing to the  said employees.

15. That the applicant has then proceeded to file CM CC4201/2017 against the  respondent’s counsel MS Janet Lavuna for reasons  that she had extracted orders  in the suits.

16. It was therefore averred that the court had over indulged the  applicant  at the expense of  the respondent  and their counsel  in person hence he ought to be declared as a vexatious litigant  because he has abused court process to the prejudice of the respondent and has filed frivolous applications which are geared  towards anyone who holds a contrary view to his and that despite  being admonished  by the  court, he has continued  to write  accusations against  judges, lawyers  and  various  officers  in his  vendetta against Kenya Revenue Authority.  Further , that he had written to the Ombudsman and Anticorruption Commission  to investigate  judges  and  Kenya Revenue Authority counsel, and that the officers have been found innocent  hence the applicant  should be  banished from prejudicing  the respondent.

17. The several decisions complained of were annexed to the affidavit filed by Miss Lavuna.  The parties argued the respective applications orally on 30th October 2017 with Mr Okoiti representing himself whereas the respondent was represented  by Mr Nyaga holding  brief for Miss Lavuna.

18. Mr Okoiti submitted that the  respondent  has never  supplied  him with  documents  that  were alleged that he posted  in the Simba System and  therefore he wants to have the judgments  made against  him set aside because he wants to proceed  with ELR 25/2013.  He submitted that in the judgment of  21st May 2014  delivered by Honourable Korir, the applicant had requested that it be stayed  to enable him obtain documents to prosecute  his case before the Employment and Labour Relations Court but that Honourable  Korir J  did not  consider his case.

19. He also complained that the respondent’s counsel was denying him a chance to prosecute his case by claiming that it is resjudicata and that the court denied him a chance to cross examine the deponents of affidavits.

20. Concerning the judgment of 11th December 2014,Mr Okoiti submitted that he wants it set aside because he applied  to review  it by  availing  all documents  that  were relevant  but that  the court had  dismissed his application  for  review.  He  submitted that he had not considered appealing because he wants the respondent to supply him with his documents to enable him prosecute the Employment and  Labour Relations Court case.  He listed the documents in issue as being 2008/MSA T810/115756; MSA T810 1157428 as per letter of  29th May 2008 and  2008  MSA T810 1152471.  He also claimed that he had never been supplied with documents in JR 351 of 2011.

21. In opposition, Mr Nyaga  submitted relying  on their grounds  of opposition filed on 27th July 2017 and contended that the applications seek to set aside  judgments of Honourable Korir J yet there is no law  where a court can set  aside a judgment  of another judge of the same jurisdiction.  Further that the applicant should have lodged an appeal to challenge the said decisions of the learned judge.  It was also submitted that the ruling of  11th December  2014  was  a ruling declining to review  the judgment  of  21st May 2014 and that instead  of the applicant appealing  against the refusal to review the earlier judgment, he  was before  court seeking  to review  a refusal to review  a judgment.

22. It  was further  submitted that the applicant  had  refused to  take wise counsel from Honourable Korir J that the Employment  and  Labour Relations Court has jurisdiction to order for recovery of the documents which the respondents posses and which the  applicant seeks to rely on in the Employment and Labour Relations Court matter .

23. The respondent’s counsel submitted that there are  no sufficient  grounds for setting aside the judgment and ruling by  Honourable Korir J and maintained that partial delivery of documents does not invalidate the decisions by Honourable  Korir  J since the  orders  concerning  production  of documents  can be issued  by the Employment and  Labour Relations Court.  Counsel urged this court to dismiss the applications by the  applicant.

24. In a rejoinder, Mr Okoiti submitted that he had been accused by Miss Lavuna for allegedly concealing and destroying documents  which he was seeking.  Further, that there was an admission  that the documents  were concealed  and  destroyed  hence this court has power to compel the respondent to produce the  documents  by way of Judicial Review.

25. With regard to the application  dated  28th  September  2017  and  filed  in court on  2nd  October  2017, Mr Nyaga  submitted that the court should bar the applicant from filing documents  or opening  any new  file between  the same parties  save for ELRC  25/2013 except with leave of court.  Secondly, that the  applicant should  be declared  a vexatious  litigant  and that he  be found  in contempt  of court.  It  was  submitted that the 7 suits  filed by  the  applicant  against the respondent  are a  waste of courts time  and  are  an abuse of court process.

26. Further, that  in JR  131/2016 he sought Hon Justice Nduma’s recusal  which the learned judge found to be scandalous, vexatious and  an abuse of court process.  That earlier on he had sought for recusal of Honourable Monica Mbaru and in her ruling the learned judge barred the applicant from writing, communicating   and  or addressing  the  respondent  directly on matters relating  to his former  employment.  That the Honourable Majanja J in  JR  351/2011 advised the applicant to file  a suit at the  Employment and Labour Relations Court which he did but has never prosecuted  it whereas in  JR 340/2013 Honourable Korir  J also  advised the applicant  to stop filing numerous  suits and focus on his Employment and Labour Relations Court but the applicant  is not willing to heed to advise and has gone ahead to sue the respondent’s counsel Janet Lavuna vide Milimani CMCC 4201/2017 for acting for the respondent counsel urged the  court to protect the respondent by declaring the applicant  a  vexatious  litigant and barring him from filing any other suit or prosecuting it as that would also protect the court from wastage  of time and resources  and  scandalous  accusations  by the respondent  who  attacked  Majanja J for  ruling  against him  and that he has also questioned Honourable Korir and Lady Justice Monicah Mbaru’s  ability to handle matters and the swipe at Ms Janet Lavuna  advocate which  are all tales of who the applicant  is.

27. It  was  submitted that the applicant deserves to be held  to be in contempt of court for disobeying the orders of Honourable Mbaru J  barring him from writing to the respondent but  that he has insisted on writing to them hence  he should not  be allowed to seek  refuge in court.

28. In response  and opposition  to the respondent’s  application Mr  Okoiti, submitted that the motion  by the respondent was filed  late out  of time  without leave of court  which had  given it  7 days from 18th September 2017 and  lapsed  on  26th  September  2017 hence this court was  urged not to entertain the motion.  He conceded to have filed several applications seeking for  documents but that in JR 13/2016 the case was not about documents and that the application was not opposed by the respondent.

29. He submitted  that Ms Lavuna  misled the  court and  when the applicant raised issues, the learned judge (Mbaru J.)  recused herself  from the case  and  that when the matter was  placed  before Nduma  Nderi J, Ms Lavuna  advocate refused  to appear  in court and  instead  raised a preliminary objection.

30. He maintained that albeit  he had been gagged  by Mbaru J in JR  13/2016, he wrote to the respondent and they paid him his  money in March 2017, which money he had been wrongly deducted.

31. He submitted that JR 300/2016 was before Honourable Odunga J who directed him to go before the Employment and  Labour Relations Court which matter  became  JR  13/2016.  He denied that CMCC 4201/2017 was against Ms Lavuna  personally and  submitted that in any event Ms Lavuna had not defended that suit and  that he already had judgment in default of appearance and that an application to set aside that judgment had been dismissed for  want  of prosecution.

32. Mr Okoiti submitted that he had come to court to seek justice and not  to  disrespect judges.  He complained  that he had issues  with the manner in which  JR 351/2011 was  handled  whereat he was called last after  staying in court until all other matters   were called out and that when he was  served with  a preliminary objection a ruling  was delivered on the preliminary objection  on the spot without canvassing it hence he was only complaining  of not being accorded an opportunity to be head which he considers  a denial of justice.

33. As against Honourable Justice Lenaola ( as he then  was), it  was   submitted that he granted the applicant leave to apply for documents  but that he denied the applicant  an opportunity  to cross examine the deponents.  He submitted that Mbaru J had never complained that the applicant used bad language against her.

34. The applicant maintained that his main cause is to get documents from Kenya Revenue Authority who sacked him from employment unfairly and that the documents being sought  are crucial.  He submitted  that his case in Employment and  Labour Relations  Court  was only  for leave  to file suit  out of time  and not  a substantive  claim.

35. He maintained that Kenya Revenue Authority was taking him in circles and that if the documents he is seeking are not available then he should be given back his job.  He accused counsels for the respondent of being fraudulent.

36. In a rejoinder, Mr Nyaga counsel for respondent submitted that the applicant was blowing hot and cold by claiming that he was supplied with some documents while some are said to be destroyed.  It  was submitted that the  applicant  should  not have  many suits  which will not  resolve  his problem and  contended that there is no  genuine  issue which  the applicant  has raised  and  the respondent  failed to  address.

37. Counsel for the respondent conceded that their application was filed out of time  but submitted that this court has jurisdiction under Article  159(2)(d) of the Constitution to deem it filed within time as  there  is no  prejudice  occasioned to the applicant  since he  has been heard and so judicial  time should  be saved  with a specific  determinations being made  to cure all the  applicant’s  problems  and  address  the issues  to save judicial time.

38. That  is the long and short of all the applications  on record  filed not only by the applicant, but also by the respondent  seeking  to bring these two cases JR 351/2011 and  JR 340/2013 to an end  and  also seeking  to bar the applicant  from prosecuting or filing any other suit other than the Employment and Labour Relation Court matter.

DETERMINATION

39. I have carefully considered all the applications on record and  in my humble  view, to resolve the  issues flowing  from the said  applications, I shall  resolve them in the  following  manner.

1) Whether the application seeking that the Directorate of Criminal Investigations do investigate the respondent’s allegations against the applicant on account of his alleged destruction of documents at the respondent’s is merited.

2) Whether the applicant should be declared a vexatious litigant and therefore whether he should be barred from filing or prosecuting any other suit against the respondent other than the Employment and Labour Relations Court matter, except  with leave  of court.

3) Whether the applicant should be held to be in contempt of Honourable Mbaru’s orders.

4) Whether the applicant’s application seeking to review the judgment and ruling by Honourable Korir J as disclosed is merited.

5) What orders should this court make; and

6) Who should bear costs of those proceedings.

40. Commencing with the issue of the Directorate of Criminal Investigations investigating the alleged destruction of the documents by the applicant, the court notes that what the applicant is seeking is an order that the Directorate of Criminal Investigations investigates into an allegation that he destroyed  the documents which he has persistently sought from the respondents so as to clear  his name.

41. In other words, t applicant is claiming  that the respondent  has levelled  accusations   against  him which  are false  and  which should be probed to establish the truth.  In my humble view, if the  respondent alleges that the documents being sought after persistently by the applicant were infact destroyed by the applicant, then the burden of proof lies on the respondents to establish  that indeed the applicant was in possession of the said documents and that  he destroyed them.  This is the letter and  spirit of  Section  107,108 and 109 of the Evidence  Act that  he who alleged  must proof.  It is not for the applicant to seek out the Directorate of Criminal Investigations to investigate him to  determine his guilt or innocence on the allegations by the respondent.

42. On the other  hand, if the  applicant  is highly  aggrieved  by the allegations  levelled  against  him by the respondent which hinge on character  assassination, he should  have  filed a suit  against the respondent for defamation of character for vindication.  He cannot be allowed to use the court process to compel the  Directorate of Criminal Investigations to  investigate allegations against him to clear his name.

43. One cannot be a complainant  and seek to be investigated at the same time.  If the applicant   believes that the respondent has wronged  him by  making  those false allegations against him, he can only sue in civil defamation.

44. In addition, the Directorate of Criminal Investigations cannot  be compelled  to investigate  a  complainant  who believes  that he  has done  no wrong and that  he is  being  wrongly  accused by  the  respondent.  In my view, the application is frivolous and an abuse of court process.  It  discloses  no cause of action against  the  Directorate of Criminal Investigations and in  as much as the Directorate of Criminal Investigations did not defend the  application, no serious court of law can grant such an application in the name  of clearing  the applicant’s  name  from being  tarnished.

45. The applicant  had avenues  through which he could  ventilate  his grievances but it appears he has lost discretion  possibly  due to lack  of proper legal advise and legal representation.  That application in my view, is contrary to the ethics of litigation and  borders on abuse  of court process.

46. The same  is hereby dismissed with no orders as to costs as it   was not defended  and perhaps, deliberately as it would  have been a waste of public  resources  for the Directorate of Criminal Investigations to come to court to defend such a frivolous  application that  was  prima facie  not arguable  or at all.

47. The second issue for determination  flows from the respondent’s   application filed on 2nd October 2017 seeking to bar the applicant  from prosecuting or filing any other suit other than the Employment and Labour Relations Court  case, save with  leave  of court and  further, to have the applicant to be declared  a vexatious  litigant.

48. However, before determining that issue, I must  determine  issue No. 3  of whether  the  applicant should  be  declared  to be in  contempt of court for disobeying orders of Mbaru J which  barred him from writing to the respondent in relation to the dispute  herein  on documents.

49. In my  humble view only  the court  which issued the  impugned  order, can be called  upon to make a  determination  On  whether  the  order in  issue was disobeyed. In this case, as the court that  made the impugned decision is Employment and Labour  Relations Court, this court has no jurisdiction superintend or over orders of an  Employment and Labour Relations Court, or to enforce that court’s orders.  The Employment and Labour Relations Court is an independent court established under Section 4 of the Employment and Labour Relations Court Act as contemplated in Article 162(2) (a) of the Constitution.  This court does not supervise the Employment and Labour Relations Court.  It cannot, therefore be called upon to hold the applicant to be in contempt  of the orders  issued  by a judge of the Employment and Labour  Relations Court.

50. Accordingly, the prayer for contempt  fails.  The same is hereby dismissed with no orders as to costs.

51. Back on the second issue of whether this court should bar the applicant from filing and or prosecuting any other suit other than the Employment and Labour Relations Court case save with leave of court and whether he should  be declared  a  vexatious litigant, the issue raises questions and the first question is whether the court can bar a party from continuing to prosecute their cases already filed in court without leave of court.

52. Section  2 of the Vexatious Proceedings Act  Cap 41 Laws of Kenya provides that   “No suit shall, except with leave  of the High Court  or of  a judge thereof, be instituted  by or  on behalf  of a  vexatious  litigant in any court, and such leave shall not be given unless the court or  the judge is satisfied  that the suit is not  an abuse  of the process of the court and  that there is  prima facie  ground for  the suit”

53. The above  provision precludes a person, having  been  declared  a vexatious litigant under Section 2(1) of the Act from instituting  any further  suits  without leave  of the court.  There  is no  other provision under the Act  which  empowers  the court to impose a ban upon a party  or person  in regard to prosecution  of existing   suits.

54. This  court, in my humble view, has no inherent  power  to make an  order restraining a person  from  continuing, to without leave of court, the prosecution of any of the suits which he or she  may have  already  instituted.  There is no such  express  power given to the court and which vests  in the court to be exercised  against the person  and therefore  in my view, to  do otherwise  would be to  violate  a person’s  right to access  justice  as stipulated  in Article 48 of the Constitution and Article 50(1) of the Constitution which latter provision stipulates that “Every person  has the right  to have any dispute  that can be  resolved  by the application  of law decided  in a fair  and  public hearing  before a court  or, if  appropriate  another  independent  and impartial tribunal  or body.”

55. A similar situation arose in Attorney General vs Racheal Wacera Kareithi [1979] e KLRwhere L.G.E. Harris  J ( as he then was) held  inter alia:

“ A difficulty  arises, however, in regard  to the  relief  claimed in  the  second  portion of the motion, which is  that the court in the  exercise  of its inherent  jurisdiction  should make an order restraining  the  respondent  from continuing  without the leave of the court  the  prosecution of any of  the  suits  which she  may have  already instituted.

The Act gives the court no such express power and it is  necessary to consider  whether  such power  can be  said  to vest  in the court  by virtue  of its  inherent  jurisdiction”

56. I agree with  the  above holding that this court would not  invoke  its inherent  jurisdiction to bar the applicant   from prosecuting  any of the  cases that  he may  already  have instituted in court except  with the leave of court.

57. Accordingly, the prayer  No. 2 by the respondent cannot hold  as  barring a party from` filing any further documents in the matters which are pending generally would infringe on his  right to be heard  and to a fair  hearing.

58. In addition, this court cannot limit the applicant  who is before the Employment and Labour Relations Court    especially  where it is  clear that the  Employment and Labour Relations Court  matter  is in its  nascent  stage.  It is  upon the respondent  to identity  what issues, in a particular or specific file that  render the proceedings  frivolous  and vexatious or abuse  of court  process and  make an appropriate application in those proceedings.

59. This court cannot be called upon to generally determine the fate of other proceedings which are not before  it for determination.  To do so would be  a traversity  of justice.

60. It is  in the same vein that  I have  declined  to find  and hold  that the  applicant  is  in contempt  of court since  the  impugned  court order which barred him from filing or writing to the respondent  is not  an order  which this court  is  under a duty to implement.

61. The other  question that is  key to be  answered in the respondent’s application and touching on issue No 2 is the prayer that the applicant  should be  declared  a frivolous  a vexatious litigant  and that he  should  therefore  be barred  from filing  any further  documents  or open  any new file  between him and the respondent  on the  same  issues  other than in  Employment and Labour Relations Court  Miscellaneous 25/2013, unless with the leave  of court.  The reasons given are  that the applicant has filed  suit after  suit and has continued to file documents and  applications  which,  despite being  dismissed  and  advisory  by the courts  that he sticks to  the Employment and Labour Relations Court matter, he has not  heeded, which actions are vexatious  and  waste the time and  resources  of the respondent  and this court.

62. The court  notes that the respondent’s  motion  is brought  under Order  2 Rule 15  of the Civil Procedure  Rules  which  relate to striking  out of  pleadings on grounds  that:

a) It discloses no reasonable cause of action or defence in law; or

b) It is  scandalous, frivolous  or vexation; 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;

63. The rule  also makes provision that pleadings  which meet  the  above  conditions  may either be amended  or be  struck out  and  under Subrule (2).  No evidence shall be admissible on an application under Subrule  1(1) (a) .

64. However, in the serious submissions made by the respondent’s counsel, he concentrated on the reason why the applicant   should be declared a vexatious litigant.  This is notwithstanding the fact that the respondent is entitled to defend the applicant’s applications and that is a matter which I will deliberate on shortly.

65. Institution and prosecution of proceedings to declare  one a  vexatious   litigant  is governed by provisions of Cap 41 Laws of Kenya which  is the Vexatious Proceedings Act, and not Order 2 Rule 15 of the Civil Procedure Rules which sets out instances where a court may strike out pleadings or order for their amendment.

66. The Vexatious Proceedings Act is an old but very brief  piece  of legislation enacted  in 1958 and commenced  on  20th March  1958.  The long   title states that ‘An Act of Parliament to prevent abuse  of the process of the High Court and other courts by the institution of vexatious  legal proceedings.

67. Under  Section 2  of the Act, it is stipulated  that:

1) If , on an  application made  by the Attorney General  under this  Section, the High Court is satisfied that any person has habitually and persistently and without any reasonable  ground instituted  vexatious  proceedings, whether  civil or  criminal, and whether in the High Court or in any subordinate court, and whether  against the  same person  or  against  different  persons, the court may, after hearing  that person or giving him an opportunity of being heard, make an order declaring such person to be a vexatious  litigant

2) If the person to whom an order is sought under this Section is unable on account of poverty to retain an advocate, the High Court shall assign an advocate to him in respect of such application.

3) A copy of any order made under this Section shall be published in the gazette.

68. Under Section 3 of the Act; with regard to restraint of civil proceedings the Act provides that:

4. “ No suit shall, except  with leave  of the High Court  or of a judge thereof, be  instituted  by or on behalf  of a vexatious  litigant   in any  court,  and any suit instituted  by him in any court  before the making  of an order under  Section 2(1)  of this  Act shall  not be  continued  by him  without  such  leave; and  such leave  shall not be given  unless the court or the  judge is  satisfied  that the suit is not an abuse of  the  process of the court and  that there is a prima facie  ground for  the  suit.

69. Thus, no criminal  proceedings shall, except  with the written  consent  of the Attorney General, be instituted  by a vexatious  litigant  in any court.

70. The Act comprises  the  above  4  sections  only but is speaks volumes  and  from the above reproduced  sections, it is clear that  there is a distinction  between Order 2 Rule  15 proceeding intended  to strike out  or amend pleadings  which meet the  conditions  under the Sub rule;  and  seeking to declare  a person  as a vexatious  litigant under Cap 41.

71. In this case, albeit  the  respondent  did not  cite  the  provisions  of the vexatious  Proceedings Act, no  doubt, the application  and  arguments point to and call for the applicant to be declared a frivolous  and  vexatious  litigant  under  prayer No. 1.

72. For one to be declared  a vexatious  litigant, an  application must be filed by the Attorney General under Section 2 of the vexatious  Proceeding Act, and not  under any other  provisions of the law.  Thus, it is only the Attorney General who is  empowered by the Act   to apply  to have  the person declared as a vexatious litigant, not any other person or party to proceedings  as was in this  case.

73. In other words, there is a whole difference  between proceedings  or pleadings   being vexatious and   frivolous  and  amounting to abuse of the process of the court, in which case, a party to  those proceedings can apply  for striking  out under   order  2  Rule 15  of the Civil Procedure  Rules; and  a person being vexatious  and   thereby the  Attorney General  initiating or being requested to initiate  proceedings that would  lead to the  person  being declared  a  vexatious litigant.  And once  such an order declaring a litigant vexatious is issued by  the  High Court, then the person (vexatious litigant) is  thereby barred from initiating any future proceedings  in any court  of law without  leave of the court.

74. Proceedings  under Section  2(1) of  the vexatious Proceedings Act are therefore distinct and independent proceedings not to be lodged in an existing suit unlike in the case of  proceedings under Order 2 Rule 15 of the Civil Procedure Rules.  It therefore  follows that an application  under Order  2 Rule  15   can only be made in a particular or specific suit and not generally to affect other existing or  impending  or intended  proceedings.

75. Further,  in proceedings under order 2 Rule 15 of the Civil Procedure Rules, the  court has no power to make  such order striking out one suit to affect/stay or dismiss proceedings in another separate  suit.

76. Accordingly, I have  no  hesitation in finding  and holding that the application by the respondent  is misconceived and the  same  must be dismissed.  What the respondent can do is perhaps  refer  the  applicant  to  the  Attorney General  under Section 2  of the Vexatious  Proceedings Act  for institution of proceedings  that would lead to his being declared  a vexatious litigant, if the  respondent is aggrieved by the conduct of the applicants  habitually and  persistently  and without  any reasonable  ground instituting vexatious proceedings, and  after  the court has  given the applicant  an opportunity to be heard  on the application  seeking to declare him  a such vexatious  litigant.  The party sought to be declared a vexatious litigant  will also  be entitled  to free legal representation  where he cannot afford one.  This is so in recognition of a party’s right to access justice and be accorded a fair hearing. Therefore, as these proceedings commenced by the respondent to have the applicant herein Paul Makokha Okoiti declared a frivolous and vexatious litigant do not meet the legal threshold laid out in the Vexatious Proceedings Act, Cap 41 Laws of Kenya, they must be and are hereby declined and dismissed.

77. I then  move onto the  question  of whether the applicant’s  own applications  seeking to set aside or  review  of the judgments  and  rulings of Honourable Korir J in the twin files as consolidated herein for purposes of this ruling, thus JR 351/2011 and 340/2013 are  merited, to which the respondent  raised a preliminary  objection  contending that the applications  are resjudicata; that  the  matter had been  determined  several times, over  the  same issue  between the same  parties  as listed  in the 7 cases; that Justice Korir had delivered a judgment  dated  21st May 2014  in the matter; the applicant  applied to set  aside that judgment vide an application dated  8th August  2014; that  Justice Korir  rendered a  decision on the latter application on  11th December 2014; that the present application  is  a second  application to set aside and that the applicant is a vexatious litigant and is abusing the court process to the prejudice of the respondent; and  that the present   application is frivolous.

78. All the previous rulings  and  judgments delivered related to these proceedings were all annexed to prove the  preliminary  objection.  The court  also notes that in JR, ELRC 13/2016, a decree  was drawn  on  24th October  2016 dismissing  the application  and  proceedings filed by  the applicant.

79. In the ELRC matter, Honourable Mbaru J also barred  the  applicant  from  writing, communicating and or addressing  the  respondent  and its officers directly on matters relating to his former  employment that ceased  on 3rd February  2009  unless the  same relates to motions of the court  out of ELRC Miscellaneous  25/2013.

80. The court further  notes that  indeed, the applications dated  12th June  2017 and  4th April  2017  are  related in the sense that  whereas  the former  seeks to set aside the judgment  of  Korir J  made on  11th December  2014,  the latter  seeks to  set aside  or review  the  ruling  made on  25th May 2015 arising out of refusal by the court to set aside the judgment of 11th December, 2014.

81. Whether the court is exercising  inherent  jurisdiction in Judicial  Review to review its own decisions or it is exercising  jurisdiction under  Order  45  of the Civil Procedure Rules  and  Section 80 of the Civil Procedure Act on review, it must  exercise such jurisdiction judiciously and not whimsically.  There are established principles  of law that govern  applications for review, generally, and  specifically.  In Judicial  Review, for  example as governed  by Section 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules, there is consensus that Order 45 of the Civil Procedure Rules and  Section  80 of  the Civil Procedure Act do not  apply.  However, the court in the exercise of its Judicial Review jurisdiction  may  in the interest  of justice or to prevent abuse of its process, review its own decision.

82. The two decisions which are sought to be reviewed were  delivered by Honourable Korir J.Albeit Mr Nyaga counsel for the respondent  contended that this court  cannot review its own  decision  where such  decision is made by another judge  of  concurrent  jurisdiction, in the Nakumatt Holdings  Limited  V Commissioner  of Value added Tax[2011] e KLR(Nakumatt Holdings case) the Court of Appeal made it clear  that whether  or not  Order  44  of the old Civil Procedure Rules applied in matters of Judicial Review, what is important is that the Superior Court in the matter before the court had the residual power to correct its own mistake and that it may be that the appellant cited wrong provisions of the law in its application for review, which, perse, would not deprive the court of  the  power  of correcting its own mistake which that court itself  acknowledged  it made.

83. The court stated inter alia:

““ Mr Ontweka  for the respondents  in his  submissions  to us, seemed  to suggest  that  where a  law is  silent  on whether review is  permissible, the courts  must decline  jurisdiction where a review  is sought.  While we agree with him  that Judicial Review  is a special jurisdiction, we  do not  agree that  in clear cases, courts  should  nonetheless fold their  hands  and  decline jurisdiction.  The process of review is intended to obviate hardship and injustice to a party   who is otherwise not to blame for the circumstances he finds himself in.  This court in the earlier  case we  cited of  Aga Khan  Education Services  Kenya V Republic (supra)  expressed  the view  that review  jurisdiction in cases  as the present  one,  should be  exercised  sparingly and in very  clear cut cases.”

84. The question  therefore is whether there is any apparent error  on the face of the record  in the two decisions  which are  sought to be  reviewed  and  or set  aside.

85. I have carefully perused the impugned judgment and  ruling  and  considered  the  applicant’s  application  and  submissions  and  I find nothing like an apparent error  capable of  being corrected  by this  court in order to  do justice  to the parties.  In the  earlier  ruling,  the court  had declined to set  aside  its own  judgment.  The applicant on being  dissatisfied with that refusal to set  aside  the court’s own judgment, filed another  application  challenging  refusal by the learned  judge  to set aside  its own  judgment.

86. The latter  application  was also  dismissed  and it is  upon that    dismissal  that the applicant  filed these  proceedings  seeking to challenge  the  refusal  to set aside  the  earlier  judgment and ruling dismissing  the application to set aside the earlier judgment.  In my  humble view, the moment the applicant’s application to set aside judgment  was declined, he had the opportunity to file an appeal  and  having squandered that opportunity, he could not in the absence of proof of an apparent error on the face of the record, seek  to have a  second  bite  at the cherry by seeking  to set aside  the refusal to set aside orders as he had exhausted his prospects in the matter.  What the applicant  is seeking, in my humble view, is the reopening of proceedings and not to correct a mistake where the court could be said to have inadvertently  made  a mistake of fact, not of law.

87. Once a court of law  makes a decision  on merit, it becomes  functus officio and its decision can only be appealed to a higher superior Court  not to the  same  court.  This court, therefore, is  unable to find any grounds for review of the decisions made   by Honourable Korir J.  To do otherwise would  be tantamount  to sitting on  appeal of  the decision  of the  court of concurrent    and competent  jurisdiction.  No  residual power vests  in a court  of law  to sit on  its own judgment where there is no claim of a mistake apparent  for correction.

88. It is for that reason that I would not belabour delving into whether  or not the  application is resjudicata  other applications  already dismissed as there is  sufficient  material to demonstrate  that the applicant  is urging  this court to sit  on the judgment  of its own decision made by a different judge which is  unacceptable  in law.  The  application for review  is accordingly declined.

89. I however must mention that the applicant is a prose litigant  and a non  lawyer.  he has for a considerably long time remained in the court corridors seeking justice to reclaim his long lost employment. He is a lay person in legal matters.  He is however knowledgeable and expresses himself quite well. He is an impressive person who can persuade a court of law to make orders in his favour where there are merits. All along he had represented himself  in matters  which even some qualified and seasoned lawyers may find  it challenging.  For the applicant,  however, justice is only served when he wins the case in court, not when he loses the battle.  That is why  he believes that the court  must rewrite the  judgment  of Korir J  and  find in  his favour  in order for it to be a  true  and  fair decision.

90. But that  is not  the nature of litigation, not forgetting  that  the law is a double  edged  sword  such that sometimes, in the course  of legal  processes, the hunter can turn  out to be the  hunted.  Tables turn even  for seasoned lawyers.

91. The  applicant  herein no doubt  harbors   a deep sense  of grievance  on the loss of his job  and he must  be forgiven  for  seeking  his rights  through thick and thin. He is seeking  for justice  from the courts, which are the only  assurance for him  getting  back his job.  But the applicant must learn  to go to  the right  forum  with the  right claim.  He must not jump in any forum irrespective of jurisdiction.

92. The honourable judges who have  handled  the applicant’s claims  in the past have  done their best.  They have guided  him on where and how he could ventilate his grievances.  I reiterate that the applicant  must accept and  know which  court  has jurisdiction to do what. He must know that a judgment  once pronounced cannot be  rewritten by the same or other judge of concurrent  jurisdiction to change the outcome.  Once  a court of law writes and delivers its judgment, it brings to finality that   particular litigation or issue between  parties, save  for an appeal  to the Court of Appeal  or the limited  application  of review  window to correct the court’s own mistakes  which are  apparent .

93. The applicant   must accept  this very  fundamental principle  of law.  And  it is the duty of this  court to tell him  so now, now that he has come this far. He must now look back and ask himself  why every  judge who hears  his matter  has had  to tell him the  same thing.  He must, in my view, not  cast aspersions  against judges who do not render decisions in his favour.  There is  no vendetta against  the applicant because  judges  own no case.  They  are not  parties to his litigation.  However much  he is  aggrieved  and even traumatized by his alleged unfair loss of his employment, he  must learn to accept verdicts  of the courts or file  appeals to a Superior Court and not to circuit  the  same court [s].

94. It is for this reason that this court must caution the applicant  herein that he must desist from filing application after  application or  suits in connection with the present  dispute with his employer otherwise since the  respondent’s  application  only fell  short of the legal requirements for declaring one a vexatious  litigant, it will not  be  long before  the  applicant  is referred  to the Attorney General under Section 2 of the Vexatious  Proceedings  Act Cap 41 Laws of Kenya, for seeking orders of the High Court that he be declared  a vexatious  litigant.  The applicant must take heed of this humble counsel.  He need not, indeed, waste courts time and resources and prejudice and vex the respondent who must also expend resources to defend quite frivolous and vexatious proceedings at the tax payers’ expense.

95. In the end, the applicant’s applications as considered in both files No JR 340 of  2013 and JR 351 of 2011 are all dismissed.  The respondent’s application seeking to have the applicant herein Paul Makokha Okoiti declared a vexatious litigant too is dismissed.

96. As none of the parties have succeeded in their quests, I hereby order that each party shall bear their own costs of these prolonged proceedings.

97. As agreed by the parties, this ruling shall apply with necessary modifications to JR 340 of 2013.

Dated, signed and delivered in open court at Nairobi this 7th day of February, 2018.

R.E. ABURILI

JUDGE

In the presence of:

Mr Paul Makokha Okoiti the exparte applicant in person

Mr Kama Rodgers h/b for Ms Janet Lavuna for the Respondent

CA: Kombo