Case ID:185169

Wahesco Inter Parcel Services Ltd v Abdurahman Bahassan & 2 others [2021] eKLR

Case Metadata

Case Number:

Civil Appeal 120 of 2019

Parties:

Wahesco Inter Parcel Services Ltd v Abdurahman Bahassan, Somchand Jetha Shah & County Government of Mombasa

Date Delivered:

04 Nov 2021

Case Class:

Civil

Court:

High Court at Mombasa

Case Action:

Judgment

Judge(s):

Dorah O. Chepkwony

Citation:

Wahesco Inter Parcel Services Ltd v Abdurahman Bahassan & 2 others [2021] eKLR

Case History:

(Being an appeal against the Ruling/order of the Honourable J. Kassam [SRM] delivered on the 14th June, 2019 in Mombasa SRMC No. 2142 of 2018)

Court Division:

Civil

County:

Mombasa

History Docket No:

SRMC No. 2142 of 2018

History Magistrate:

Hon.J. Kassam - SRM

History County:

Mombasa

Case Outcome:

Appeal allowed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL APPEAL NO. 120 OF 2019

WAHESCO INTER PARCEL SERVICES LTD.............................................APPELLANT

-VERSUS-

1. ABDURAHMAN BAHASSAN )

2. SOMCHAND JETHA SHAH )

3. COUNTY GOVERNMENT OF MOMBASA)

.........................................RESPONDENTS

(

Being an appeal against the Ruling/order of the Honourable J. Kassam [SRM] delivered on the 14

th

June, 2019 in Mombasa SRMC No. 2142 of 2018)

JUDGMENT

1. This is an appeal from the decision of the Senior Resident Magistrate’s Court on an application dated

6

th

March, 2019

and filed by the Appellant on

7

th

March, 2019

seeking only one substantive prayer that the court grants it leave to enter a default Judgment against the 3

rd

Respondent; the County Government of Mombasa who had failed to file a statement of defence within the stipulated time. On the grounds in support thereof, it was averred that the 3

rd

Defendant had been served with the Plaint on

26

th

October, 2018

and it entered appearance on

30

th

October, 2018

but failed to file any defence to the Plaint.

2. That application was opposed by the 3

rd

Respondent through the replying affidavit sworn on

28

th

March, 2019

by its Director Legal Services, one

Mr.

Jimmy Waliaula

. His disposition was that, there is another pending suit being

Mombasa High Court Civil Miscellaneous Application No.50 of 2014

which was consolidated with

JR. No.49 of 2014

, on

15

th

May, 2015,

involving the same parties with regard to the Appellant’s failure to pay Cess Tax on a parcel of services business it operates. He added that the Appellant has never resorted to prosecute those matters which were stood over generally. It is on those grounds that the 3

rd

Respondent has sought to be allowed to file its statement of defence.

3. Upon considering the averments by each party, the trial court reached a conclusion that the suit before it was a total abuse of the court process given that there were two other similar matters pending before the high court over the same issues and the Appellant was therefore guilty of failing to disclose the same. In addition to that, the trial court was of the view that allowing the suit before it would have been tantamount to allowing a fresh suit through the backdoor and on that basis saw it appropriate to mark the suit as withdrawn.

4. Aggrieved by that decision, the Appellant has preferred the instant appeal and has approached this court vide the

Memorandum of Appeal

dated the

21

st

June, 2019

raising the following grounds; That:-

a) The Honourable Magistrate erred in law and in fact by directing that the Appellant’s Notice of motion application dated 19

th

October, 2018 and notice of motion dated 6

th

March, 2019 and the entire suit be withdrawn without considering the

issues therein.

b) The Honourable Magistrate erred in law and in fact in failing to consider that the issue therein arose on 20/9/2018 whereas the judicial review was instituted in the year 2014 touching on cess tax imposed by the 3

rd

Respondent under The Financial Bill of 2014 and which are not the same issues raised as in the current suit which is about the erection of barriers by the 1

st

Respondent at the entrance of the Appellant shop.

c) The Honourable Magistrate erred in law and fact by failing to consider that an interlocutory Judgment had already been entered against the 1

st

and 2

nd

Respondents and what was before her was an application for leave on whether to enter interlocutory Judgment against the 3

rd

Respondent or they be granted leave to file defence out of time.

d) The Honourable Magistrate erred in law and facts by failing to appreciate that the major dispute was between the Plaintiff and the 1

st

and 2

nd

Respondent and the 3

rd

Respondent was just a necessary party because its officers were used by the 1

st

Respondent to frustrate the Appellant’s business operation in clamping down business trucks notwithstanding parking fees having been paid for the designated area.

e) The Honourable Magistrate erred in law by issuing an ambiguous ruling which is hard it had to tell whether it is a ruling or a Judgment.

f) The Honourable Magistrate erred in law and facts by issuing an ambiguous ruling/Judgment dealing with issues which were not before her thereby disallowing the Appellant Notice of Motion application dated 19

th

October, 2018 and 6

th

March, 2019 respectively.

g) The Honourable Magistrate erred in law and fact in failing to consider that in striking out the suit on the basis that there was another dispute between the Appellant and the 3

rd

Respondent has greatly prejudiced the Appellant who is losing Kshs.2,000/= daily unnecessarily in terms of labour to offload goods from a far distance other than its designated offloading area.

5. Following the directions issued by this court on

8

th

February, 2021

, the appeal was canvassed by way of written submissions with the Appellant filing its submissions on

11

th

March, 2021

while the Respondents on the hand failed to file their submissions despite being granted numerous chances to do so.

Appellant’s Submissions

6. It is the Appellant’s submission that the 1

st

Respondent has sabotaged its economic prospects by erecting metal barriers in front of the Appellants shop. The Appellant had then sought his landlord who is the 2

nd

Respondent to compel the 1

st

Respondent to pull down the metal barriers but the 2

nd

Respondent had been hesitant to do so. Instead and according to the Appellant, the 1

st

Respondent colluded with the 3

rd

Respondent’s officers to clamp the 1

st

Respondent’s motor vehicle while offloading goods next to those metal barriers. It was that state of affairs which led to the filing of

Mombasa SRMCC No.2142 of 2018

substantially seeking a prayer for immediate and unconditional removal of the barriers blocking the access to the its shop

Number S4/5

located at

Plot No.111//33238

. In the Appellant’s view, it was therefore wrong for the trial court to dismiss the suit before it on the basis of the existence of the case in

Judicial Review No.50 Of 2014

since in the former, the orders sought were for Certiorari, Prohibition and Mandamus to issue against the 3

rd

Respondent, the County Government of Mombasa from charging Cess fees which is a totally different cause of action as is in

SRMCC No.2142 of 2018

.

7. It is added that for the doctrine of sub-judice to apply as is provided under

Section 6

of the

Civil Procedure Act (Cap 21) Laws of Kenya

, besides the suit being similar on both cases, the issue in both suits should be one or the same. The Appellant has gone on to rely on the case of

Richard Kiplangat Sigei –vs- Grace Sang [2020]eKLR

,

where it was held that; for the doctrine of res sub-judice to apply, it is necessary that the issues in the subsequent suit be also directly and/or substantially the same issues in the other suit. With that point of view, it is the Appellant’s case that sub-judice cannot apply to this case where

SRMCC No.2142 of 2018

concern was whether or not the metal barriers should be removed while

J.R No.50 of 2014

concerns the Finance Bill of 2014 by the County Government of Mombasa and especially the charging of Cess fees, hence, there was no nexus between the two cases.

Analysis and Determination

8. I have considered the issues raised in this appeal by reading through the proceedings before the lower court, the ruling of the court, the grounds raised in the

Memorandum of Appeal

and the submissions made by the Appellant’s counsel. In my view, the issue which stands out for determination is whether the trial erred in dismissing the suit before it and subject of this appeal on basis of the same being res sub-judice.

9. However, this being a first appellate court, it is the duty of this court to evaluate afresh the evidence adduced at the lower court and draw its own conclusions albeit always bearing in mind that it neither saw nor heard the witnesses when they testified and should therefore make due allowance in that respect (see the case of

Selle & Another –vs- Associated Motor Boat Co. Limited & Others (1968) EA 123

).

10. It is with no doubt that the suit subject of this appeal was dismissed vide the ruling delivered on

14

th

June, 2019

although the same was indicated at its heading as a Judgment. A Judgment is only arrived at upon consideration of the material facts presented before the court and proven to the required standard on application of the relevant applicable law whereas a ruling on the other hand, is a decision on a party’s motion before the conclusion of the hearing and may in certain circumstances be the final decision of the court.

11. By its ruling dated

14

th

June, 2019

, the trial court dismissed the Appellant’s suit and the Applications pending therein for the reason that the suit was res sub-judice to other two consolidated suits pending before the High Court which in view of the trial court, concerned the same subject matter. According to the trial court, the issue of concern in all those cases was payment of Cess Tax and it would thus be prudent to await the outcome of the cases pending in the High Court which is the court with unlimited jurisdiction to hear any civil dispute.

12. This then leads to determining the issue of whether the suit before the trial court was res sub-judice the suits pending before the high court in line with

Section 6

of the

Civil Procedure Act

which provides as follows:-

“No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.”

13. From the above decision, for the doctrine of res sub-judice to apply the conditions precedent are that;

first

, there must exist two or more suits filed consecutively;

secondly

, the matter in issue in the subsequent suit must also be directly and substantially in issue in the previously instituted suit;

thirdly

that the parties in the suits or proceedings must be the same or must be parties under whom they or any of them claim and they must be litigating under the same title; and

lastly

, the suits must be pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed

.

14. In the case of

Thika Min Hydro Co. Ltd vs. Josphat Karu Ndwiga

(2013)eKLR

,

the court held as follows:-

“It is not the form in which the suit is framed that determines whether it is sub judice. Rather it is the substance of the suit and looking at the pleading in both cases.”

15. Considering the above principles in light of the facts in the present case, I agree with the trial court’s finding to the extent that the parties in both in

SRMCC No.2142 of 2018

and

High Court Misc. suit No.50 of 2014

as consolidated with

Judicial Review Suit No.49 of 2014

are similar. Even if this court had no benefit of perusing the pleadings in

Judicial Review No.49 of 2014

allegedly pending before this court, a cursory glance of the trial court’s ruling as well as the pleadings filed by the parties in the subject appeal show that the cause of action was the payment of Cess tax by the Appellant.

16. Nonetheless, I have considered the Plaint in

SRMCC No.2142 of 2018

and established that the cause of action arose when the 1

st

Defendant erected metal grills which the Appellant alleged had completely blocked access to his shop. Therefore, the issue for determination therein was whether or not an order could issue directing the immediate and unconditional removal of the metal barriers while the payment of Cess Tax by the Appellant was not an issue at hand.

17. Clearly, the substance of those suits was not similar and it was thus wrong

for the trial court to dismiss case number

SRMCC No.2142 of 2018

which in its substance sought the removal of metal barriers erected by the 1

st

Respondent on the basis of the existence of other suits whose substance was payment of Cess Tax charged by the 3

rd

Respondent. It is for that reason that I hold the view that the doctrine of res sub-judice should not and cannot apply on those particular facts.

18. Consequently, the present appeal is found merited and the same is allowed, with the following orders issuing; That:-

a) The trial court’s Ruling and Order dated

14

th

June, 2019

the subject of the appeal herein, are hereby set aside.

b) The Appellants suit herein

Mombasa SRMCC No.2142 of 2018

against the Respondents to proceed for hearing of the pending applications on a date to be fixed at the court registry.

c) The costs of the appeal shall follow the costs in the suit.

It is so ordered.

JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI ON THIS 4TH DAY OF NOVEMB, 2021.

D. O. CHEPKWONY

JUDGE

In the presence of:

No appearance for either party

Court Assistant - Gitonga