Tatu City Limited & another v Taijbee Bhalla Advocates LLP [2022] KEHC 11916 (KLR) | Case Management Directions | Esheria

Tatu City Limited & another v Taijbee Bhalla Advocates LLP [2022] KEHC 11916 (KLR)

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Tatu City Limited & another v Taijbee Bhalla Advocates LLP (Civil Case E702 of 2021) [2022] KEHC 11916 (KLR) (Commercial and Tax) (21 July 2022) (Ruling)

Neutral citation: [2022] KEHC 11916 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Civil Case E702 of 2021

WA Okwany, J

July 21, 2022

Between

Tatu City Limited

1st Plaintiff

Oaklands Properties Kenya Limited

2nd Plaintiff

and

Taijbee Bhalla Advocates LLP

Defendant

Ruling

Background 1. On 1st September, 2021 and 1st November, 2021, this Court (differently constituted and presided over by Mr. Justice Alfred Mabeya) directed that the hearing of the Plaintiff's Originating Summons dated 23rd July, 2021 proceeds by way of Affidavit evidence and Written Submissions.

2. Dissatisfied with the said directions, the Defendant herein filed the Notice of Motion dated 10th November, 2021 seeking, inter alia, orders to set aside of the said directions.

3. The Court record in HCCC no E629 of 2021 reflects that on 14th December, 2021, Honourable Mr. Justice Alfred Mabeya recused himself from the case suo moto.

4. 0n 16th December 2021 parties appeared before Justice Alfred Mabeya in this matter when the said Judge recused himself suo moto citing the same reasons for his recusal of 14th December, 2021 in HCCC no E629 of 2021; that is, that this matter is related to HCCC no E629 of 2021 and that the Court would be embarrassed if it proceeds to it.

5. Following the twin recusals by Justice Mabeya, this matter was reallocated to this court for hearing and determination.

Application Dated 10th November 2021 6. This ruling is with respect to the defendant’s application dated 10th November 2021 wherein it seeks the following orders: -1. Spent2. The proceedings in suit be stayed to await the delivery of the Ruling on the application for consolidation and joinder in HCCC no E629 of 2021, William K Gitau v Stephen Jennings & Others.3. The directions issued on 1st November, 2021 directing that this suit be heard and determined by way of Affidavit evidence and submissions be and are hereby set aside ex-debito justitiae.4. An Order be and is hereby issued directing that the hearing of this suit proceeds by way of viva voce evidence.5. The Defendant be at liberty to call its witnesses, Mr. Patrick Kipkemoi Korir and Ms Grace Murigu whose sworn testimonies are as set out in their respective Affidavits attached to this Motion.6. Witness Summons be and are hereby issued to compel the attendance in Court of the following persons for cross-examination: Ms. Mary Chege; Mr. Evans Dimba; Mr. Issa Mansur and Mr. Josiah Kamau.7. Leave be and is hereby granted to the Defendant to serve a Third Party Notice upon Hon. William K Gitau.8. Costs of this application be provided for.

7. The application is supported by the affidavit sworn by Mr. Azim S Taijbee, advocate and the Managing Partner in the defendant law firm. He avers that: -1. On 1st November, 2021 this Honourable Court issued directions to the effect that the hearing of this suit proceeds by way of Affidavit evidence and Submissions and that the matter be mentioned for directions of delivery of Judgement.2. This suit is related to HCC no E629 of 2021, William K Gitau v Stephen Jennings & Others. The suit properties subject of this suit are the very same suit properties subject of HCCC no E629 of 2021. Any findings made by this Honourable Court in this suit will certainly prejudice the cause of action and outcome in HCCC no E629 of 2021. 3.There is a Ruling pending delivery on notice in HCCC no E629 of 2021 in respect of an application seeking the consolidation of HCCC no E629 of 2021 with this suit. The directions issued on 1st November, 2021 prejudices the pending application for consolidation and effectively, pre-determines the dismissal of the said application even before the Ruling is written.4. There are highly contested facts and issues in this suit which cannot be determined summarily and certainly require an oral hearing. It is therefore proper and in the interest of justice that the directions issued on 1st November, 2021 be set aside ex-debito justitiae. To wit:-i.The question as to whether there is an Advocate-Client relationship between the Plaintiffs and Defendant is highly contested and the parties herein have taken sharply contrasting positions on this issue;ii.Facts, issues and circumstances surrounding the movement and custody of the original titles in respect of the suit properties is highly contested; andiii.Facts pertaining to the handling, receipt and the recipient of sale proceeds in respect of a number of concluded purchase transactions on the suit properties are highly contested.5. A reading of the Supporting Affidavit sworn by Christopher John Barron in support of the Originating Summons dated 23rd July, 2021 and the Defendant’s Replying Affidavit sworn by Azim S Taijbee on 2nd August, 2021, demonstrates that there are highly contested facts and issues in this matter requiring hearing by way of oral evidence and cross-examination of the deponents.6. It is therefore only fair, lawful and in the interest of justice that this suit be determined by way of viva voce evidence in order that the averments and evidence presented by both parties be tested.7. This Honourable Court has power to issue Witness Summons compelling attendance of witnesses in the manner sought in this application.8. In the Replying Affidavit sworn on 2nd August, 2021 the Defendant has detailed and enumerated facts in respect of the participation of Ms. Mary Chege; Mr. Evans Dimba; Mr. Issa Mansur and Mr. Josiah Kamau in the transactions subject of this suit.9. The said persons in respect of whom Witness Summons are sought, were at the center of the transactions and are seized of material facts which will assist this Honourable Court reach a fair and just determination.10. All that the Defendant seeks is a fair hearing as guaranteed by Article 50(1) of the Constitution of Kenya and an opportunity to fully and effectively ventilate the issues in controversy.11. There is an urgent need to hear and determine this application expeditiously in order to forestall a situation where Judgement is delivered in this suit on the basis of untested Affidavit evidence replete with highly contested facts and issues.12. The Defendant seeks leave of Court to serve Third Party Notice upon Hon William K Gitau for the reason that the monies and original titles subject of the Originating Summons are in the custody of Hon William K Gitau and not the Defendant. In the circumstances, the issues and questions in this suit should properly be determined not only as between the Plaintiff and the Defendant but as between the Plaintiff and Defendant and the Third Party.13. It is only lawful, fair and in the interest of justice that the application filed herewith be allowed.

8. The respondents/plaintiffs opposed the application through the Grounds of Opposition dated 3rd February 2022 wherein they list the following grounds: -1. This application was filed after directions were issued by the Court on the hearing and disposal of the suit. The directions were fully complied with by the Plaintiffs/Respondents. The Defendant/Applicant on the other hand, have to date willfully refused to comply with the said directions. The same is currently pending judgment by this Honorable Court. The actions on the part of the Defendant/Applicant in filing this application in blatant disregard of the directions issued by the Court constitutes gross abuse of the court process. Entertaining the application will give the Defendant/Applicant powers to control the court and its proceedings in a manner or style of their liking, to the detriment of the Plaintiffs/Applicants.2. The order issued by the court on 1st November 2021 cannot be set aside and/or reviewed by the Court. It is only appealable.3. An order directing the hearing of the suit to proceed by way of viva voce evidence is untenable in law for the following reasons:a.The court issued directions on the mode of hearing the suit herein. The Plaintiffs have complied with the said directions and are waiting a judgment date.b.The Defendant/Applicant cannot make an application to review or set aside the said directions. The Court declined that invitation and held that it will not set aside the order it issued on the mode of hearing the suit. The Defendant/Applicant was instead directed to appeal.c.The application herein is an appeal from the directions issued by Honorable Justice Mabeya;d.The Court being of equal and/or concurrent jurisdiction to that of Honorable Justice Mabeya has no jurisdiction to sit on appeal against any of his decisions.e.The law is that proceedings commenced via originating summons be heard expeditiously and through affidavit evidence.4. The court cannot compel the attendance of witnesses who have not been served with the Application and are thus not accorded an opportunity to be heard pursuant to Article 50 of the Constitution.5. That in so far as Mr. Evans Dimba and Mr. Issa Mansur are concerned, the two are lawyers for the Plaintiffs/Respondents and the Plaintiffs/Respondents invoke advocate-client privilege under Section 134 of the Evidence Act. In the premise the said two lawyers are not compellable witnesses to give evidence against their clients/employees.6. The Application herein is frivolous, vexatious and solely designed to delay the fair and expeditious determination of the dispute herein.7. The Plaintiffs/Respondents are greatly prejudiced by the conduct and strategy of the Defendant/Applicant who are their Advocates and who hold more than ksh 135 million and title deeds for property valued over ksh 2 billion. The need to secure the rights of the said Plaintiffs/Respondents and to determine the suit herein expeditiously is of paramount importance.8. The issues that divide the parties herein are simple issues of law. The same do not need oral evidence as the documentary evidence before the court suffice for the purposes herein.

9. The respondents also filed a replying affidavit sworn by the 2nd plaintiff’s Director Mr. Christopher John Barron in response to the application. The respondents’ deponent avers that the application is an abuse of the court process and is meant to delay the hearing of the case as the court had already issued directions regarding the filing of responses and submissions including directions that the matter proceeds by way of affidavit evidence.

10. Mr. Barron further states that the plaintiff has already complied with the court’s said directions unlike the defendant who is yet to comply with the said directions despite the expiry of the given timelines. He states that the prayer to stay these proceedings pending the ruling on the application for consolidation and joinder in HCC no E629 OF 2021 William. K. Gitau v Stephen Jennings & Others had already been dealt with and determined by Hon. Justice Mabeya on 1st September 2021.

11. The plaintiff’s case is that no valid basis has been made for the prayer to summon and cross examine witnesses as the matter before this court is a simple case initiated by Originating Motion where the proceedings are conducted by way of affidavit evidence.

12. I have carefully considered the application, the rival arguments made by the parties through their comprehensive and well-researched written submissions which they highlighted at the hearing. I note that the main issue for determination is whether the applicant has made out a case for the granting of the various prayers sought in the application.

Stay of Proceedings 13. The defendant submitted that this suit should be stayed to await the outcome of an application to consolidate this suit with a related suit being HCC no E629 OF 2021 William. K. Gitau v Stephen Jennings & Others as the parties and the subject matter in both suits are the same. According to the applicant, the findings made in this suit will have a bearing and/or prejudice the determination of the related case. The defendant added that the Honourable Mr. Justice Alfred Mabeya had already made the finding, when recusing himself on 14th December 2021 and on 16th December, 2021 that this suit is indeed related to HCCC no E629 of 2021.

14. It was the defendant’s case that this Court is clothed with the inherent jurisdiction under Section 3A of the Civil Procedure Act and under the general rubric of the court's unlimited jurisdiction under of Article 165 of the Constitution of Kenya to stay the present proceedings in the manner sought. The appellant cited the decision in Harman Singh & Others v Mistri [1971] EA 122 where it was held that: -“The High Court has inherent jurisdiction to order a stay of a suit for sufficient reason where the ends of justice so require. It is a discretionary power vested in the court.”

15. The plaintiffs, on the other hand, vehemently opposed the prayer for stay of proceedings and submitted that a number of common sense factors militate against an order for stay of these proceedings as the suits are totally different in terms of the parties litigating therein. The plaintiffs submitted that their constitutional rights to access court justice will be greatly compromised and that it does not make sense to stay proceedings because of an application made in another suit. It was further submitted that the Civil Procedure Act does not empower the court to stay its proceedings so that an application is argued and determined in other suits.

16. The plaintiffs’ case is that the defendant’s strategy is to confuse and conflate the issues so as to stall this matter since it is holding the plaintiffs’ money and titles. The plaintiffs argued that the subject of stay of proceedings is res judicata as Mabeya J. in his decision of 1st November 2021 expressly stated that he was aware of the ruling pending in HCC no 629 of 2021 but did not consider it relevant.

17. The issue that this court has to grapple with is whether the application meets the threshold for grant of stay of proceedings. It is trite that a decision on whether or not to grant stay of proceedings is discretionary and that this Court has powers to stay proceedings in order to meet the ends of justice as long as sufficient reasons are given. (See Harman Singh & Others v Mistri (supra).

18. In the present case, I note that the prayer for stay of proceedings is based on the claim that any findings made in this suit will prejudice the cause of action and outcome in HCCC no 629 of 2021. For this argument, the defendant referred to the ruling made Mabeya J. in HCCC no 629 of 2021 on 14th December 2021 when he, suo moto, recused himself from the case while stating that: -“After retiring to write the consolidated ruling in the two applications pending, I realized that the court will be embarrassed because of Ruling and directions previously made in another related matter E702 of 2021. For that reason, I am unable to further deal with this matter. The orders in force are extended until further orders of the next court.I reallocate the matter to Hon Okwany J. I apologize for the delay in writing the Ruling on this matter. It is because of indisposition twice.Mention on 14th December 2021 before Okwany J. for further directions.”

19. As I have already noted elsewhere in this ruling, when this matter came up for mention on 16th December 2021, Mabeya J. similarly suo moto recused himself from the case and stated that: -“This court made certain directions and ruling on 1st September 2021. This court has also made observations on this matter as well as a related matter being HCCC no 696 of 2021 which makes it uncomfortable to continue hearing the pending matters. In view of the said observations, I feel that it would be better for this matter and the said HCCC no 696 be handled by a different court other than this court. In this regard, I recuse myself from further handling this matter. I allocate the same to Hon. Okwany J. Mention on 20th December 2021 before the good Judge for her directions.”

20. A cursory glance at the above rulings by Mabeya J. reveals that, according to Justice Mabeya, there is a nexus between this matter and HCCC no E629. I therefore note that from the ruling by Mabeya J., the issue of the existence of a related or similar case whose outcome may have a bearing on this case matter is not a creation of the defendant herein but is a factual matter going by the courts observations.

21. The plaintiffs objected to the granting of the stay orders while arguing that the application was a ploy to delay the hearing of their case. I note that the plaintiffs filed the OS on 23rd July 2021 while the directions that are the subject of this ruling were issued in September and November respectively. The instant application was filed in November 2021. I am, in the circumstances, unable to find that there has been any delay or indolence, on the part of the defendant, in prosecuting the matter so as to justify the allegation that the application is a delay tactic.

22. Courts have taken the position that they will not readily grant stay of proceedings orders as such orders have the effect of interfering with a litigant’s right to be heard on the merits of his case. In Kenya Wildlife Service v James Mutembei [2019] eKLR it was held that: -“…Stay of proceeding should not be confused with stay of execution pending appeal. Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on right of access to justice, right to be heard without delay and overall, right to fair trial. Therefore, the test for stay of proceeding is high and stringent…”

23. In this case, I note that the court has not been informed of the current status of the application in HCCC 629 of 2021 that is the reason for the prayer for stay orders. It is not clear if the said application has been heard or if it is still pending. This court is at a loss as to what would happen to this matter if it is stayed and the parties in the alleged related case do not proceed with their matter. I find that it will be unfair to hold this case in abeyance or at the mercy of another case which the plaintiffs herein have indicated they have no interest in. I therefore decline to grant the stay of proceedings orders sought.

24. Before I pen off on the issue of stay of proceedings, I wish to point out that it did not escape this court’s attention that the circumstances under which this matter and the alleged related matter HCCC no 696 of 2021 were reallocated to this court are quite peculiar. I say so because not only were the reasons for the recusal unclear but that no sooner had I taken over the conduct of this case on 24th December 2021 than Mr. Ahmednassir SC objected to this court to taking over the matter. According to the Senior Counsel, this matter should be handled by another judge in view of the nature of the controversy. In the counsel’s own words, this matter is among a litany of ‘Tatu City cases’ one of which already had a Ruling before this court. He noted that this is the 3rd matter in the same series before this court.

25. According to Senior Counsel, the 3 cases should not be pigeonholed to this court. He was also concerned that Mabeya J. did not give reasons for the transfer of the cases to this court. Despite counsel’s apprehension to this matter being heard by this court, parties eventually settled on the hearing of the application dated 10th November 2021 by this court.

26. My humble view is that parties should have lodged their objection to the reallocation of the cases to this court at the time the order was made transferring the same to this court or through a formal application for recusal for this court’s consideration.

Setting Aside Directions/Oral Evidence 27. The Defendant sought orders to set aside the directions issued that the hearing of the OS proceeds by way of Affidavit evidence and Submissions. The Defendant argued that the interest of justice demands that this matter be heard by way of Oral Evidence (viva voce). According to the defendant, all that the he seeks is a fair hearing as guaranteed by Article 50(1) of the Constitution of Kenya and an opportunity to fully and effectively ventilate the issues in controversy.

28. It was the defendant’s case that there are highly contested facts and issues in this suit which cannot be determined summarily and require an oral hearing. It was submitted that the question of whether there is an Advocate-Client relationship between the Plaintiffs and Defendant is highly contested and the parties herein have taken sharply contrasting positions on the issue among other issues such as the circumstances surrounding the movement and custody of the original titles in respect of the suit properties; the handling, receipt and the recipient of sale proceeds in respect of a number of concluded purchase transactions on the suit properties. The defendant cited the decision in Attorney General & another v Uasin Gishu Memorial Hospital Limited another [2021] eKLR where the Supreme Court held that where there are highly contested facts, reliance on Affidavit evidence would deny parties the right to be heard. The Apex Court held: -“Having found that the High Court failed to execute its constitutional mandate, the learned Judges of Appeal proceeded to address the substantive issues before them. In doing so, the Appellate Court relied on affidavit evidence, without giving parties the opportunity to present and examine evidence. We are aware that the learned judges of Appeal may have invoked Section 3(2) of the Appellate Jurisdiction Act. Ordinarily, this would have been proper had all the facts and law been well presented at the trial court. It is not contested in the superior courts and even before this Court that the question of ownership of the suit premises, the legal status of the 1st Respondent and compensation(if any) upon acquisition of the suit premises by the Appellants and vesting the same upon the 2nd Respondent are highly contested. We do agree with the High Court on its finding only to the extent that the matter could not be determined by affidavit evidence in the manner in which the suit was presented before it. Consequently, we fault the Court of Appeal for determining the substantive issues before it, which issues had not been exhaustively determined by the High Court. This act denied the parties the opportunity to be heard and effectively and exhaustively address the contested issues. For this reason, we find that both superior courts denied the parties their right to be heard as provided for in Article 25 and 50 of the Constitution. We do agree with the Appellants' and the 2nd Respondent's argument that the Court of Appeal ought to have referred the matter back to the High Court for determination of contested issues. Consequently, we find error on the part of the Court of Appeal in determining the matter as it did.”

29. The defendant submitted that the Plaintiff will not suffer any prejudice whatsoever if the hearing of the Originating Summons proceeds by way of Oral Evidence as the Defendant has already disclosed the identities and testimonies of the witnesses he intends to call at the hearing. It was submitted that the Plaintiffs will have a fair chance to present their case and cross-examine the Defendant's said witnesses.

30. 1t was further the defendant’s case that the plaintiffs had taken an erroneous position that proceedings commenced by Originating Summons must be determined by Affidavit evidence. For this argument, the defendant cited the case of FIA v GAA [2021] eKLR where the High Court declined to determine an Originating Summons summarily through Affidavit evidence while stating as follows:-“I agree with the defendant. The issues raised in the originating summons cannot be disposed of summarily. They are of a nature that would require an oral hearing. The alleged partnership was not incorporated by deed, and has to be inferred from the conduct and relationship between the parties. Such conduct or relationship has to be assessed from oral evidence from both sides. It is alleged that the defendant conducted himself in a manner that was either inconsistent with the partnership arrangement or to the detriment of the partnership. The conduct or misconduct of the defendant, which is said to be detrimental to the partnership or in breach of the partnership agreement, can only be brought out through oral evidence presented by the parties. It is alleged that the partnership always operated at a loss. Whether a business operated at a loss or not is usually subject to documentary evidence, and where there is no agreement on the fact, the person presenting the accounts would have to be subjected to cross-examination. That would require an oral hearing. Clearly, a suit of this nature should ideally be commenced by way of a plaint. That would be the most effective way of handling highly contested matters of this nature. The plaintiff ought, therefore, to have initiated the cause by way of plaint.However, all is not lost. There is nothing to prevent disposal of an originating summons by way of oral or viva voce evidence. It is common with suits for division of matrimonial property, especially those founded on the now repealed Married Women’s Property Act of 1882. The instant suit should, therefore, not be struck out to pave way for the filing of a suit by way of plaint.”

31. On their part, the plaintiffs submitted that this court is not clothed with appellate jurisdiction to overturn the orders and decisions made by Justice Mr. Mabeya, J. so that it can grant prayers 3, 4, 5 and 6 of the application. It was submitted that this court, being of concurrent jurisdiction, lacks the jurisdictional competence to set aside all the orders issued by Justice Mr. Mabeya, J on 1st November 2021.

32. The plaintiffs contended that the court's ruling dated 1st November 2021 dismissed the application made by the Defendant/Applicant that the court change/review and/or set aside the decision it made on 1st September 2021. According to the plaintiffs, the only option open to the Defendant/Applicant is to appeal against the order of the court and not to make a second application before this court challenging the decision made by Justice Mr. Mabeya J. on 1st November 2021.

33. The plaintiffs observed that courts have variously addressed the issues as at to whether a court of concurrent jurisdiction can sit on appeal over the decision of the Judge who made a decision and that the courts have always frowned upon such conduct. For this argument, the plaintiffs cited, among other cases, the decision in the Court of Appeal in the case of Bellevue Developmentco.LtdvHon. Mr. Justice Francis Gikonyo & 7 others [20181 eKLR where Justice Kiage JA stated as follows: -“"1 have no difficulty upholding the learned Judge's holding that as a judge of the High Court he had no jurisdiction to enquire into or review the propriety of the decisions of the Judges, who were of concurrent jurisdiction as himself. In our system of courts, which is hierarchical in nature, judges of concurrent jurisdiction do not possess supervisory jurisdiction over each other. no judge of the High Court can superintend over fellow judges of that court or of the superior courts of equal status.This position is so well established that it would be a strange aberration for a judge to embark on what is essentially an examination of the judicial conduct and pronouncements of judges of the same status as himself, a task that is left to courts and judges of higher status in the hierarchy, by way of appeals. Pronouncements by judges of the High Court on this point are germane and demonstrative of this understanding. In Kombo v Attorney General [1995-981 IEA 168, cited by Ole Keiwua, J(as he then was) properly rejected and repulsed an invitation to scrutinize and interrogate the conduct and decision of a judge of concurrent jurisdiction mounted by way of an application for enforcement of fundamental rights under section 84 of the retired Constitution. Said the judge;"All the applicant's complaints were criticisms on how the election court [High Court had acted and this was in the nature of an appeal which appeal did not lie to a judge of coordinate jurisdiction as the election court and was further an attempt to circumvent the provision of section 44(5) of the Constitution which provides against an appeal from decisions of the election court. The election court had sat as a High Court in terms of section 44(1) of the Constitution whereas the present application was made pursuant to provisions of section 84 of the Constitution. The High Court sitting pursuant to the provisions of section 84 of the Constitution cannot override the decisions of the same High Court exercising its constitutional jurisdiction."

34. The plaintiffs further submitted that the decision made by Justice Mabeya declining to set aside his order of 1st September 2021 raises the legal doctrine of res judicata as the said judge in a considered and concise ruling declined to set aside his directions on how the case should be tried and concluded. They noted that in the instant application, the Defendant/Applicant is trying to relitigate the same issue yet again. They argued that Section 7 of the Civil Procedure Act and the law developed by the court on the doctrine of res judicata stops this court from revisiting the matter a second time. Reference was made to the decision in Kenya Commercial Bank v Benjoh Amalgamated Limited [2017] eKLR where the Court of Appeal restated the settled law on res judicata as follows: -“As previously observed, the amount of litigation undertaken by the parties herein has been enormous and unrelenting. A plethora of suits numbering at least 14 have been canvassed in all the courts of record all geared towards resolving the same dispute arising from a single transaction and involving the same parties. In such a scenario, small wonder that issues previously canvassed and determined by other courts have repeatedly found their way before other courts for determination. Courts called upon to determine such issues have all invoked the doctrine of res judicata. The doctrine is provided for in our jurisprudence by dint of section 7 of the Civil Procedure Act which {provides;"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."The elements of res judicata have been held to be conjunctive rather than disjunctive. As such, the elements reproduced below must all be present before a suit or an issue is deemed res judicata on account of a former suit;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.See Mulla, Procedure Code Act of 1908 16th Edition.Expounding on the rationale of the doctrine, the Court of Appeal remarked as follows in the recent appeal; Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others (2017) eKLR,"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 common-sensical 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 favorable 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 and calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice."

35. On whether the court should issue fresh directions on the hearing of the suit by way of viva voce evidence the plaintiffs submitted that they dutifully complied with the court's directions of 1st September 2021 and filed their written submissions dated 5th October 2021. According to the plaintiffs, the hearing of the suit is complete as they have filed their pleadings. They reiterated that the only remaining issue in the suit, from their perspective is a date for judgment. They urged this court to give them a judgment date.

36. The plaintiffs blamed the Defendant/Applicant for disobeying the orders of 1st September 2021 and 1st November 2021. They urged the court not to grant the defendant audience.

37. The orders sought to be set aside herein relate to directions issued by Justice Mabeya who previously dealt with the matter. Directions, in my humble view, are tools that courts employ in the management of the cases before them. Directions, as the name suggests, offer a guide to the parties on the manner in which they should proceed with the pleadings to be filed and the timelines for the various actions to be taken. The fixing of matters for hearing, mentions, rulings and judgments also form part of the directions.

38. This court takes judicial notice of the reality that directions are not cast in stone as in most instances, the same are reissued or reviewed from time to time as the circumstances of the case may require. A practical example is a case where a court issues directions that the case a case be canvassed by way of written submissions only for the parties to later request the court to hear the submissions orally and vice versa. In the present case, it is true that directions had been issued that the OS be canvassed by way of affidavit evidence. It would then appear that the defendant prefers to tender oral evidence as opposed to affidavit evidence.

39. It is trite that cases belong to the parties and it is within the right of a party to determine the manner in which he wishes to present his case. For this reason, the court cannot force a party to proceed in a manner that he feels will not enable him properly bring out his case. For this reason, I find that the defendant has made out a case for the setting aside of the orders directing parties to canvass the OS by way of affidavit evidence. This is however not to say that the plaintiffs will be required to alter the position that they had already taken by complying with the directions to file affidavits and submissions. This court can still adopt a hybrid process where parties present both oral and affidavit evidence.

40. I further find that the court has the inherent jurisdiction and discretion to set aside its own orders in the interest of justice where sufficient grounds have been presented. I therefore allow the prayer to set aside the directions issued on 1st September 2021.

Third Party Notice 41. The Defendant also sought the leave of this Court to issue a Third-Party Notice upon William K Gitau in terms of Order 1 Rule 15 of the Civil Procedure Rules 2010. Reliance was placed on the decision in the case of Yafesi Walusimbi v Attorney General of Uganda (1959) EA 223, (adopted in Interactive Advertising Limited & another v Equity Bank Limited & 2 others [2016] eKLR) where the Court emphasized that:-“In order to join a third party the subject between the third party and the defendant must be the same as the subject matter between the plaintiff and the defendant and the original cause of action must be the same.”

42. The defendant explained that he seeks leave to issue the Third-Party Notice because the monies and original titles subject of the Originating Summons are in the custody of the intended Third Party Hon. William K. Gitau and not the Defendant. He maintained that the issues and questions in this suit should properly be determined not only as between the Plaintiff and the Defendant but as between the Plaintiff and Defendant and the Third Party.

43. The defendant averred that the intended third party deducted funds from him directly and remitted to the Respondent. The defendant further claimed that the intended third party will be in a good position to demonstrate how the funds were remitted to the Plaintiffs/ Respondents.

44. On their part, the plaintiffs submitted that the intended Third Party is a total stranger to the suit who had no stake or contribution whatsoever in the subject matter of the case.

45. My finding is that the defendant has laid sufficient basis for the inclusion of the intended Third Party to the suit through the issuance of the Third Party Notice. The court cannot at this point in time, and before hearing the kind of evidence that the defendant intends to tender against the said Third Party, determine if his involvement will add any value to the matter.

Witness Summons 46. The Defendant also sought an Order that Witness Summons be issued to compel the attendance, in Court, of the following persons for cross examination: Ms. Mary Chege; Mr. Evans Dimba; Mr. Issa Mansur and Mr. Josiah Kamau. The defendant argued that the court is clothed with powers to summon any person for cross-examination. Reference was made to Section 22(b) of the Civil Procedure Act, as read together with Order 16 of the Civil Procedure Rules and the case of Manchester Outfitters Ltd v Pravin Galot 4 others [2021] eKLR where the Court expressed itself as follows:-“From the foregoing provisions, it is clear that a court suo moto, can summon any person it deems is a necessary witness either for purposes of giving a testimony or for producing a document(s). An application in this regard can also be made by a necessary party.What this implies is that notwithstanding our finding that no basis has been laid for the summoning of Ms. Latita Galot, the court on its own motion, may summon any person it deems fit as a necessary witness to aid it in arriving at the determination. A witness summoned by the court may also be intended to fill any void identified in the course of the proceedings and which void, if not filled, may undermine a just, objective and concise determination.”

47. The defendant averred that the persons in respect of whom Witness Summons are sought, were at the center of the transactions and are seized of material facts which will assist the Court to reach a fair and just determination.

48. The plaintiffs, on the other hand, submitted that Section 134 of the Evidence Act prohibits the defendant’s attempts to summon the said lawyers. They submitted that the prohibition kick starts once the client invokes their statutory privilege. For the rationale of the advocate/client confidentiality, reference was made to the Canadian Supreme Court case of R v McClure [2001] SCC 14(36 ) where it was held that: -“The important relationship between a client and his or her lawyer stretches beyond the parties and is integral to the workings of the legal system itself. The Solicitor-client relationship is a part of that system, not ancillary too it. The prima facie protection for solicitor-client communications is based on the fact that the relationship and the communications between solicitor and client are essential to the effective operation of the system".

49. Reference was also made to the case of Baker v Campbell (1983) 153 CLR 52, 128(Per Dawson J) where the High Court of Australia expressed itself in similar terms that:-“Whilst legal privilege was originally confined to the maintenance of confidence pursuant to a contractual duty which a rises out of a professional relationship, it is now established that its justification is to be found in the fact that the proper functioning of our legal system depends upon a freedom of communication between legal advisers and their clients which could not exist if either could be compelled to disclose what passed between them for the purpose of giving or receiving advice. This is why the privilege does not extend to communications arising out of other confidential relationships such as those of doctors and patient, priest and penitent or account and client...The restriction of the privilege to the legal profession serves to emphasis that the relationship between a client and his legal adviser has a special significance because it is part of the functioning of the law itself.”

50. The plaintiffs quoted several authorities on the subject of advocate/client confidentiality and observed that the Defendant/Applicant did not serve the application on the lawyers it seeks to summon which omission is fatal the application. According to the plaintiff, the application can only be considered if it is served on the said lawyers as considering it in their absence will be tantamount to condemning them unheard.

51. My finding is that there is no mandatory requirement that an application to summon witnesses must be served on the intended witness before the same can be considered. Indeed, as can be seen from the decision in Manchester Outfitters case (supra) the court can, suo moto, summon any person it deems is a necessary witness either for purposes of giving a testimony or for producing a document(s).

52. I also note that the defendant enumerated the facts in respect of the participation of summoned witnesses in the transactions that are the subject of the suit. The defendant argued that the said witnesses were at the center of the transactions and are seized of material facts which will assist this Court reach a fair and just determination of the case. The defendant therefore maintained that the said persons are competent and compellable witnesses within the meaning of section 125 and 128 of the Evidence Act.

53. Section 134 of the Evidence Act stipulates as follows: -“(1)no advocate shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his employment as such advocate, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment:Provided that nothing in this section shall protect from disclosure–(a)any communication made in furtherance of any illegal purpose;(b)any fact observed by any advocate in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment, whether the attention of such advocate was or was not directed to the fact by or on behalf of his client.

54. My reading of the above provision is that the advocate/client confidentiality is not absolute as there are instances, stated in the proviso, where the advocate may be required, for the stated compelling reasons to disclose communication or content and condition of documents.

55. In the instant case, I note that the defendant has explained that the summoned advocates were at the center of the transactions that are the subject of this suit and are therefore seized with material facts that may assist the court arrive at a just determination of the dispute.

56. I find that the prohibition under Section 134 of the Evidence Act is specifically in respect to the disclosure of communication made to an advocate by his or her client or divulgence of information regarding documents that come to his/her attention in the course of employment as the client’s advocate. The prohibition is therefore for the protection of the client and not of the advocate as all the advocate gets is the privilege on non-disclosure.

57. My finding is that considering the nature of this case, where an advocates law firm has been sued over dealings in land sale agreement in which the summoned advocates also participated and are seized with the facts of the case, it will be necessary to have the in-put of the said advocates in the matter. Of course in such a case, the said advocates may will still be within their rights not to divulge confidential information regarding their client.

58. I therefore find that the applicant has made out a case for the summoning of the advocates who participated in the transactions under dispute.

59. In conclusion, I find that the application dated 10th November 2021 is merited, albeit partly, and I therefore allow it in the following terms: -a.The directions issued on 1st November, 2021 directing that this suit be heard and determined by way of Affidavit evidence and submissions be and are hereby set aside.b.An Order be and is hereby issued directing that the hearing of this suit proceeds by way of viva voce evidence.c.The Defendant be at liberty to call its witnesses, Mr. Patrick Kipkemoi Korir and Ms Grace Murigu whose sworn testimonies are as set out in their respective Affidavits attached to this Motion.d.Witness Summons be and are hereby issued to compel the attendance in Court of the following persons for cross-examination: Ms. Mary Chege; Mr. Evans Dimba; Mr. Issa Mansur and Mr. Josiah Kamau.e.Leave be and is hereby granted to the Defendant to serve a Third Party Notice upon Hon. William K Gitau.f.Costs of this application shall abide the outcome of the main suit.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 21ST DAY OF JULY 2022. W. A. OKWANYJUDGEIn the presence of: -Willis Otieno for Defendant/RespondentAhmednassir S.C for 1st and 2nd Plaintiff/RespondentsCourt Assistant- Sylvia