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Benjoh Amalgamated Limited and Another v Kenya Commercial Bank Limited (high court petition case no. 352 of 2007) [2007] KEHC 3 (30 May 2007)

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
HIGH COURT PETITION CASE NO. 352 OF 2007

IN THE MATTER OF SECTION 84(1) OF THE CONSTITUTION OF KENYA

IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER SECTION 75 OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF LAND PARCEL NUMBER LR. NO.12411/112411/2 IN NYANDARUA DISTRICT AND LR NO. 10075 IN KIAMBU DISTRICT

AND

IN THE MATTER OF THE CONSTITUTION OF KENYA (SUPERVISORY JURISDICTION AND PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS OF THE INDIVIDUAL) HIGH COURT PRACTICE AND PROCEDURE RULES, 2006

BETWEEN

 BENJOH AMALGAMATED LIMITED
MUIRI COFFEE ESTATE LIMITED ………………………………PETITIONERS

 VERSUS

KENYA COMMERCIAL BANK LIMITED……………...……….RESPONDENT

RULING
By a Petition dated and filed on 3-04-2007, the Petitioners herein sought the declarations therein that; the Respondent’s attempt to sell the Petitioner’s properties listed therein situate in Nyandarua and Kiambu Districts of Kenya is in contravention of the Petitioner’s right to property under Section 75 of the Kenya Constitution, that the Respondent’s attempt to sell the parcels of land is illegal and unconstitutional, and an order that the Respondent discharges their charges on the said parcels of land and releases the same to the Petitioners, and that the Respondents do pay the costs of the Petition.

Together with the Petition, the Petitioners also filed a Chamber Summons under rule 20 of the Constitution of Kenya (supervisory jurisdiction and protection of Fundamental Rights and Freedoms of the Individual) High Court Practice and Procedure rules 2006, and Rule 3(1) of the High Court (Practice and Procedure Rules) in which the Petitioners sought and were granted one order, namely – that pending the hearing and final determination of this Petition, the sale of the petitioners’ properties, namely, Land References Numbers 12411/1 and 12311/2 in Nyandarua District and LR 10075 in Kiambu District by the Respondents, their servants and/or agents be stopped, or till further orders of the court.
It is that order staying the Respondent’s right to sell the properties, which the respondent challenged by way of a Preliminary Objection dated and filed on 16th April 2007. That preliminary objection came before me on 18-04-2007, and I ruled against it and directed the Respondent to come to Court by way of rule 22 of the Constitution High Court Practice and Procedure Rules (L.N. 6 of 2006) which provide that a person affected by an order made under rule 20 of the said rules may apply to set aside such order.
So by a chamber summons dated and filed on 19th April, 2007, the Respondent sought three prayers, namely:-
(a)     
that the Petition herein be struck out as it is res judicata and abuse of the Court’s process;
(b)     
that the conservatory orders granted to the Petitioners on 10th April, 2007 be set aside;
(c)     
that the costs of this present application (the Chamber summons) be awarded to the Respondent.
The application was supported by the Affidavit of one Evans Mose an employee and the Legal Manager of the Respondent and the grounds that:-
(i)     
the Petitioners have filed nine previous suits against the Respondent and the issues in this Petition were directly and substantially in issue in the said suits which were fully and finally determined;
(ii)    
the Petition herein is concerned with a dispute between private parties and is not of a public nature;
(iii)   
the Petition is barred by and under the provisions of the Limitation of Actions Act and is therefore defective, incompetent and bad in law;
(iv)    
there is no breach of the Petitioner’s fundamental rights as provided in the Constitution.
The Petitioner’s Counsel Wachakana, being well versed in the practice and procedure of the Constitutional and Judicial Review Division of the High Court filed his skeletal submissions in preparation for the hearing of the Petition. The Respondent has not done so, having first filed the Chamber Summons under rule 22 of the High Court Practice and Procedure Rules in Constitutional Applications.

However, to the Respondent’s Chamber Summons aforesaid, the Petitioner’s Counsel filed on 25th April, 2007, Grounds of Opposition dated 24th April, 2007.
When respective Counsel appeared before me on 4th May, 2007, Mr. Oraro relied upon the Affidavit of Evans Mose in support of the Chamber Summons and the grounds set out above. On his part, Mr. Wachakana learned Counsel for the Petitioners relied upon the grounds of opposition referred to above.

 According to the Petitioner’s Counsel, Mr. Wachakana, the main issue is whether the conduct of the Respondent Bank, infringes upon the right of the Petitioners to own land or property, in a manner that is inconsistent with the Constitution of Kenya. The secondary issues whether the Petitioners owe Respondents any moneys.

Mr. Wachakana also argued that since the Respondent has not responded to the Petition under rule 16, the Court should move in terms of rule 18 of the said practice and procedure rules of the Constitution, and that until the Petition is heard the conservatory orders should remain in force. Counsel submitted that previous judgments on the matter dealt with different issues and issues of fundamental rights and freedoms had never been raised before. The Petition, was not frivolous, that there are serious issues raised in the Petition and that the doctrine of res judicata does not apply to the petition, and ultimately prayed for the dismissal of the Respondent’s Chamber Summons with costs to the Petitioners, on the ground also that the Chamber Summons lacked merit.

 In response to Mr. Wachakana’s contentions, Mr. Oraro, learned Counsel for the Respondent cited Section 75(6) of the Constitution which expressly exempted the application of Section 84(1) to the matters raised in the petition, and reiterated the Respondent’s prayers in the Chamber Summons that the Petition herein be struck out on the grounds advanced on the face of the Chamber Summons, and the facts deponed to in the Supporting Affidavit of Evans Mose already referred to above. Both Counsel relied on their respective authorities cited at the hearing of the Chamber Summons in respect of the Respondent, but set out in the grounds of opposition in respect of Mr. Wachakana, learned Counsel for the Petitioners.

Having considered the respective parties arguments, it is now necessary to carry out an investigation into the validity of those arguments. I shall commence with the Petitioner’s Counsel arguments relating to rules 16 and 18 of the Constitution of Kenya (supervisory jurisdiction and protection of fundamental rights and freedoms of the individual) Practice and Procedure Rules.

Rules 16 and 18 thereof respective provide as follows:

“16. The Attorney-General or the respondent, as the case may be, shall within fourteen days of service of the petition, respond by way of a replying affidavit and if any document is relied upon, it shall be annexed to replying affidavit.

 18. (1)Within seven days from the date of service of the response or further affidavit, whichever is the later, the Registrar shall place the matter before a judge for fixing a hearing date or directions.
(2)The Judge may in giving directions require that parties file and serve written submissions.
Those rules with respect to Mr. Wachakana, learned Counsel for the petitioners was to play where a Respondent or Respondents or as appropriate the Court finds that there is a Constitutional issue to answer, or put differently the Petition raises a Constitutional issue for determination. Where a Respondent determines that the Petition raises no Constitutional issue, and claims for other reasons such as that the matters raised in the Petition are res judicata, then the Court is bound to inquire, not into alleged contraventions of fundamental rights merely but also into the issues raised by the Respondent that the Petition does not lie or is not maintainable under the Constitution. That is the position in this present matter, reference by the Applicant’s Counsel to the procedure laid down in rules 16 and 18 of the said Practice and Procedure Rules are of no avail to the Petitioners.

 The other and indeed the main contention by the Petitioners’ Counsel is that the Petitioner raises a fundamental issue, namely the Petitioner’s right to own property under Section 75 of the Constitution.

In answer to this main contention, the Respondent’s reply was two-fold. Firstly, the Respondent contends that the Petitioners have previously filed nine suits against the Respondent and the issues in this Petition were directly and substantially in issue in those suits which were fully determined. The Respondent therefore invoked the doctrine of res judicata a principle set out in Section 6 of the Civil Procedure Act, that postulates that suits between the same parties raising the same issues, once conclusively determined cannot be raised in subsequent suits between the same parties.
The last such suit was the subject of Appeal in Civil Appeal No.239 of 2004. In dismissing the appeal from the decision of Lenaola Ag. J. in HCCC No. 1576 of 1999, the Court of Appeal found as the learned judge had found that HCCC No.1576 of 1999 was res judicata and said at pages 21 – 22 of their judgment –
“Having held that all the issues raised in H.C.C.C. No.1576 of 1999 were res judicata we do not think it is necessary for us to consider whether the suit was an abuse of the process of the court and whether it was filed outside the period of limitation. In any case a party who brings for the decision of the Court matters which have already been determined can truly be said to be abusing the process of that court whether or not the suit was brought within or outside the limitation cannot really matter, the issues raised in it having been previously determined, no court was entitled to try those issues again.”
The Petitioners have now cloaked the same issues in the gown of a constitutional petition and plead that the Petition raises completely different issues which have not been previously determined in the nine suits and the Court of Appeal in the immediately cited appeal case, and pray that this court does find as the court which granted a stay orders against the sale of the petitioner’s properties, that there are justiciable constitutional issues. I do not think so, and I will adopt language which the Court of Appeal employed in the foregoing appeal at page 22 of its judgment-

“…We have said enough we think to show that the appeal cannot succeed. We think the Applicants will not like it but we also must point out to them that irrespective of how many cases they may wish to bring on the same issues, the answer will and can only be one and they already know what that answer shall be. This appeal fails and we order that it be and is hereby dismissed with costs thereof to the Respondent.”
That judgment, was delivered at Nairobi on 31st March, 2006. About a year later, the Petitioners cloak the same claims in the velvet or purple gown of a constitutional petition alleging contravention of their fundamental rights and freedoms to own property, and in fairness were granted conservatory orders against the sale of their properties pending the determination of their petition. The issues I whether there is a viable petition in law and the Constitution.
In law, the Court of Appeal has found that the Petitioners claim was res judicata and this Court has no jurisdiction to sit on that finding under the pretext of a Constitutional application. It is patently clear from the Court of Appeal judgment that the matters raised therein was res judicata. The question is whether the situation is different under the Constitution. It is not. This is what the Constitution provides in the relevant provisions cited by the Petitioners themselves.

 Firstly, under Section 70 of the Constitution, the right to the protection of property and from deprivation of property without compensation is subjected to the rights and freedoms of others or the public interest. Here the petitioners’ rights to property is subject to the Petitioners respecting the rights of others. How so one may ask?

Under Section 75(6) of the Constitution the compulsory acquisition of any person’s property is justified and is not inconsistent with the protection given under Section 75 (1) and (2) – to the extent that the law in question makes provision for the taking of possession or the acquisition of property is for the reasons cited in that subsection, including-
(i)     
an incident of a lease, tenancy, mortgage, charge, bill of sale, pledge or contract;
(ii)    
in the execution of judgments or orders of a court in proceedings for the determination of civil rights or obligations.
These are incidents which are reasonably justifiable in a democratic society, and a society subject to the rule of law.

The Constitutional petition will not come to the aid of the Petitioners. The Constitution expressly allows the taking of possession or acquisition in the incidents described in section 75(6) of the Constitution. Where a Petitioner has entered into a tenancy, or a lease, or a mortgage or charge, bill of sale, pledge or contract, any disputes arising out of those incidents are disputes of a private and commercial nature and give rise to claims in private law and are not inconsistent with the Petitioner’s right to own property.

Once a court of competent jurisdiction has determined a matter relating to private rights that judgment is valid, and the constitutional court will not on the principle of res judicata which applies to the final and conclusive determination of the dispute, reopen it unless there is shown that due process was not adhered to the decision challenged in some other respect unconstitutional. See the cases of Booth Irrigation –v- Mombasa Water Products Ltd (HC Misc. Application No.1052 of 2004), and Kenya Bus Service Ltd & Others –v- The Attorney General & 220 Others (Nairobi HC No.413 of 2005)
In Teitinnang –v- Ariong & Others (1987) L.R.C. (Const.) 517 a decision from the Pacific Island of Kiribati (Former Virgin Islands), Maxwell CJ declined to grant a declaration that the Defendants, members of a village had violated the Plaintiff’s right to freedom of movement guaranteed under the Constitution. The court held that the Plaintiff was not entitled to the declaration sought because the duties imposed under the fundamental rights provisions of the Constitution were owed by the Government to the governed. No such duty was owed by an individual to another individual and so no individual could seek a declaration for a breach of duty under those provisions by another individual.
In that decision Section 17 (1)(2) and (5) are similar to Section 84(2) and 84(6) of our Constitution and Sections 3 to 16 are similar to Sections 70 to 83 (inclusive) of our Constitution. In the result the above case is persuasive to us. Kiribati being also a member of the Commonwealth of Nations formerly of British Colonies or Territories.

 In the result therefore, the Petitioners remedy lies in the ordinary civil courts, and not the Constitutional Court. The Petition raises no constitutional issue and having filed nine previous cases, and an appeal to the Court of Appeal which was unsuccessful, the Petitioners Petition can fittingly be described as an abuse of the Court process and with nine previous suits an appeal to the Court of Appeal this Petition and another suit to be pending before the Milimani Commercial Courts, the Petitioners and their servants or agents can be truly described as vexatious litigants.

In as much as the Court is invested with power under Section 84(2) of the Constitution to issue such writs and give such directions as it may consider appropriate for the purposes of the enforcement of any of the provisions of Section 70 to 83 (inclusive) of the Constitution, it may likewise issue writs and directions in relation to the abuse of its process.

 Before I conclude this Ruling, I make reference for the Respondent’s citation of Order VI rule 13(1)(B) and (D) of the Civil Procedure Rules.

Whereas I accept that the Petition herein is indeed scandalous, frivolous or vexatious, and is an abuse of the process of the court, these are legal principles which are applicable to ordinary civil suits, and there is a real danger of debasing the practice and procedure of the Constitutional Court under Chapter V (Bill of Rights) of the Constitution into a civil procedure process. I think this must be guarded against. I make the distinction that whereas principles of law found in the Civil Procedure Code comprising the Civil Procedure Act, and the Civil Procedure Rules where they are not inconsistent with the Constitution may be borrowed, care must be taken to ensure that civil procedure rules are not indiscriminately invoked and applied to constitutional applications. Under the current practice and procedure, rule 22 of those rules is adequate to invoke the legal principles of scandalous, frivolous and vexatious litigation or abuse of the court process without incorporation of orders of the Civil Procedure Rules. Reference to Order VI rules 13 (1) (B) and (D) of the Civil Procedure Rules is to that extent incompetent.

I would indeed summarize the position as follows. A Constitutional Petition or Reference may be struck out in limine on the same grounds as a Court would in civil suit that is to say, the matters are either res judicata, the matters are barred by limitation, or the petition is scandalous, frivolous and vexatious, or is otherwise an abuse of the Court process. The Petition herein fits that bill.
Indeed as the Court of Appeal observed in their decision referred to above, I have said enough to show that the Petition raises no constitutional issue, that the matters complained about fall within the realm of private law, and are enforceable as such under Section 75(6) of the Constitution, and whether the Petitioners come under the guise of a constitutional reference and until and unless the constitutional provisions cited are changed (and there would be no plausible reason for such change), the answer will, and can only be one, and I think the Petitioners and their Counsel already know what that answer shall be. The Respondent’s Chamber Summons dated 19th April, 2007 succeeds with costs to the Respondents.
Dated and delivered at Nairobi this 30th day of May, 2007.
M. J. ANYARA EMUKULE

JUDGE

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