(a) Did the High Court procedurally consider the plea of res judicata?
34.On the first issue of whether the High Court procedurally considered the plea of res judicata, we look at the definition of procedure according to Black’s Law Dictionary, 9th Edition which provides as follows:
1.A specific method or cause of action.
2.The judicial rule or manner for carrying on a civil lawsuit or criminal prosecution also termed rules of procedure.
35.The procedure on how the court should determine an application is governed by order 51 of the Civil Procedure Rules, 2010. It provides as follows:
36.The appellants have relied on article 51. Article 51 is on the rights of persons detained, held in custody or imprisoned. The precise provision on right to fair hearing is article 50 which at sub-article 1 provides as follows:
37.The right to fair trial is a fundamental non-derogable under article 25 of the Constitutionwhich provides as follows:
38.he African Commission on Human and People’s Rights established general principles to all legal proceedings applicable by Member States, of which Kenya is one. Therefore, the principles are binding under article 2(5) and (6) of the Constitution, and include the following:(e)adequate opportunity to prepare a case, present arguments and evidence and to challenge or respond to opposing arguments or evidence;(f)an entitlement to consult and be represented by a legal representative or other qualified persons chosen by the party at all stages of the proceedings;…(i)an entitlement to a determination of their rights and obligations without undue delay and with adequate notice of and reasons for the decisions; and(j)an entitlement to an appeal to a higher judicial body.”
39.In a concurring opinion, Njoki Ndungu, SCJ in the decision of Evans Odhiambo Kidero & 4 others v Ferdinand Ndungu Waititu & 4 othersPetition No 18 of 2014 as consolidated with Petition No 20 of 2014  eKLR elaborated on the right to fair hearing as follows:(257)Fair hearing, in principle incorporates the rules of natural justice, which includes the concept of audi alteram partem(hear the other side or no one is to be condemned unheard) and nemo judex in causa sua (no man shall judge his own case) otherwise referred to as the rule against bias. Peter Kaluma, Judicial Review: Law, Procedure and Practice 2nd Edition (Nairobi: 2009) at page 195, notes that the rules of natural justice generally refer to procedural fairness in decision making. Further he analyses the two mentioned concepts of the rules of natural justice and states [at pages 176 and 177] that it is the duty of the courts, when dealing with individual cases, to determine whether indeed the rules of natural justice have been violated and noting that “although the necessity of hearing is well established, its scope and contents remain unsettled.”(258)What then are the norms or components of a fair hearing? The Supreme Court of India, in Indru Ramchand Bharvani & others v Union of India & others, 1988 SCR Supl (1) 544, 555 found that a fair hearing has two justiciable elements: (i) an opportunity of hearing must be given; and (ii) that opportunity must be reasonable (citing Bal Kissen Kejriwal v Collector of Customs Calcutta & others AIR 1962 Cal 460).(259)That court in Union of India v JN Sinha & another, 1971 SCR (1) 791 and CB Boarding & Lodging v State of Mysore, 1970 SCR (2) 600 held that with regards to fair hearing, each case has to be decided on its own merits. In Mineral Development Ltd v State of Bihar, 1960 AIR 468, 160 SCR (2) 909 the court further observed that the concept of fair hearing is an elastic one and “is not susceptible of easy and precise definition.”
(260)The Court of Appeal at Kampala in Uganda in Obiga v Electoral Commission & anor, Election Petition Appeal No 4 of 2011  UGCA 29 (Obiga) held that in order to determine whether a party received a fair hearing, the court has to look to the statutes, case laws, and regulations that govern the decisions that the court made.
(261)It is important to restate that a literal reading of the provisions of the Constitutionshow that the right to a fair hearing is broad and includes the concept of the right to a fair trial as it deals with any dispute whether they arise in a judicial or an administrative context. Comparative experience shows that the European Court has elaborated on the question regarding the scope of the right to fair trial applying the right in both civil and in criminal matters. The European Court of Human Rights (European Court) has severally explained that: “it is central to the concept of a fair trial, in civil as in criminal proceedings, that a litigant is not denied the opportunity to present his or her case effectively before the court.” (See Steel and Morris v United Kingdom,  ECHR 103, paragraph 59).
40.This court in its decision in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others Petition 7 of 2018 consolidated with Petition 9 of 2018  eKLR determined what constitutes a right to fair hearing. We held as follows:(86)We are also minded that the interests of justice dictate that this court ensures that all parties to a dispute are accorded a fair hearing so as to resolve the dispute judiciously. This is particularly so because what is at stake is the appellant’s right to a fair election as well as the right of the voters to non-interference with their already cast votes, the will of the people, so to speak. It is on this breath that we must consider whether the appellant’s right to a fair hearing and trial will be infringed upon by the denial of admission of new evidence.(87)In the circumstances, was there a reasonable opportunity of hearing given to the appellant? In this regard, what then are the norms or components of a fair hearing? In the matter of Indru Ramchand Bharvani & others v Union of India & others, 1988 SCR Supl (1) 544, 555, the Supreme Court of India, found that a fair hearing has two justiciable elements: (i) an opportunity of hearing must be given; and (ii) that opportunity must be reasonable (citing Bal Kissen Kejriwal v Collector of Customs, Calcutta & others, AIR 1962 Cal 460). It is important to restate that a literal reading of the provisions of the Constitution of Kenya show that the right to a fair hearing is broad and includes the concept of the right to a fair trial as it deals with any dispute whether they arise in a judicial or an administrative context. Comparative experience shows that the European Court has elaborated on the question regarding the scope of the right to fair trial applying the right in both civil and in criminal matters. The European Court of Human Rights (European Court) has severally explained that: “it is central to the concept of a fair trial, in civil as in criminal proceedings, that a litigant is not denied the opportunity to present his or her case effectively before the court.” (See Steel and Morris v United Kingdom,  ECHR 103, paragraph 59).”
41.In considering whether the High Court procedurally considered the plea of res judicata, we are asked to determine whether the court accorded the appellants an opportunity of hearing; and whether that opportunity was be reasonable. In order to do that we must look at the court record of the proceedings before the High Court.
42.On November 5, 2013, the appellants filed, alongside the main Petition, an application under certificate of urgency seeking inter alia conservatory orders to restrain the respondents from levying the disputed fees.
43.The application dated and filed November 5, 2013was placed before the duty court (Odero J) on the same day and counsel for the appellant was given an opportunity to address the court on the same. The court certified the matter as urgent and directed that counsel for the appellant serve the application on the respondents for hearing on November 14, 2013.
44.Order 51 rule 14 of the Civil Procedure Rules, 2010 makes provision on how a matter who wishes to oppose an application may respond. It provides as follows;
45.Upon service, the respondents entered various responses. The 3rd respondent entered appearance on November 11, 2013 and on even date filed Grounds of Opposition dated October 11, 2013 to oppose the appellant’s application raising the plea of res judicata due to the Judgment in JR No 130 of 2011 by the High Court. On November 14, 2013, the 3rd respondent filed a replying affidavit sworn by John Dira Omingo, the 3rd respondent’s Head of Commercial Shipping, on November 13, 2013. The 3rd respondent annexed a copy of the Judgment in Mombasa HC Misc Application No 130 of 2011.
46.The Attorney General on November 18, 2013 also filed Grounds of Opposition dated November 14, 2013 raising the same objection. While the 4th respondent, on 3rd December 2013 filed a replying affidavit sworn by Berthe Morisho Mwamvua, the 4th respondent’s appointed representative in Kenya, on 2nd December 2013 opposing both the petition and the application. The 1st respondent on 21st February 2014 filed a replying affidavit sworn by Nduva Muli, the Principal Secretary in opposition to the petition.
47.All the parties appeared before court (Kasango, J) on November 14, 2013 where counsel for the 1st and 2nd respondents sought an adjournment on account of not properly on record consequently not ready to proceed. Counsel for the 4th respondent also sought for more time on account of not having been properly instructed. Counsel for the appellants vehemently opposed the application for adjournment. The court however allowed the adjournment and directed that the same proceed for hearing on December 4, 2013.
48.It is important to note that at this point, the appellants were aware of the defences and opposition raised against their application and petition including the plea of res judicata. They were also aware of the Judgment in JR 130 of 2011 as it one of the annexures in the affidavit sworn by John Dira Omingo, the 3rd respondent’s Head of Commercial Shipping, on November 13, 2013.
49.On December 4, 2013 all parties appeared before court (Muriithi, J)where they were each granted opportunity to address the court on the merits and demerits of the application by the appellants. It was at this point that if the appellants had felt that the time to reply to the plea of res judicata was too short that they should have raised the same before the court. Parties were unable to conclude their oral submissions and the matter was stood over to January 21, 2014 where parties were able to finalise their oral submissions. Counsel for the appellants was granted opportunity for a rebuttal to counter the submissions by the respondents.
50.The court then rendered its ruling on July 31, 2014 where it found the petition to be res judicata.
52.This was followed up by the Judgment of Sir Charles Newbold in the same case:
53.Instead, and contrary to the appellants submissions, the plea of res judicata was raised through both grounds of opposition and replying affidavits in response to the appellants application. It is also evident that through the replying affidavits of the 3rd and 4th respondents, evidence by way of the Judgment of JR No 130 of 2011 was introduced through an affidavit to bolster the plea of res judicata.
54.It is further evident that the appellants were not condemned unheard or shut out from the proceedings. The proceedings demonstrate that the court accorded the appellants the two justiciable elements of fair hearing: (i) an opportunity of hearing must be given; and (ii) that opportunity must be reasonable.
55.This ground of appeal must therefore fail.
Is this doctrine of res judicata applicable to constitutional litigation and interpretation, just as in other criminal and civil litigation?
56.The doctrine of “res judicata" is provided for under section 7 of the Civil Procedure Act in that: -
57.The Civil Procedure Act has also provided explanations with respect to the application of the res judicata rule. Explanation 1-6 are in the following terms:
58.This court in the case of Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & anotherMotion No 42 of 2014  eKLR (Muiri Coffee case) held as follows regarding the doctrine of res judicata:"52Res judicata is a doctrine of substantive law, its essence being that once the legal rights of parties have been judicially determined, such edict stands as a conclusive statement as to those rights. It would appear that the doctrine of res judicata is to apply in respect of matters of all categories, including issues of constitutional rights. Such a perception has a basis in comparative jurisprudence; in the Ugandan case of Hon Norbert Mao v Attorney-General, Constitutional Petition No 9 of 2002;  UGCC3, the petitioner brought an action on behalf of 21 persons from his constituency, for declarations under article 137 of the Uganda Constitution, and for redress under article 50 of that Constitution. The matter arose from an incident in which officers of the Uganda Peoples Defence Forces attacked a prison, and abducted 20 prisoners, killing one of them. Unknown to the petitioner, another action had already been filed under article 50, seeking similar relief; and Judgment had been given in Hon Ronald Reagan Okumu v Attorney-General, Misc Application No0063 of 2002, High Court HCT 02 CV MA 063 of 2002. The Constitutional Court dismissed the petition, on a plea of res judicata, declining the petitioner’s pleas that certain important constitutional declarations now sought, had not been accommodated in the earlier Judgment.53.In Silas Make Otuke v Attorney-General & 3 others,  eKLR, the High Court of Kenya agreed with the Privy Council decision in Thomas v The AG of Trinidad and Tobago (1991) LRC (Const) 1001, in which the Board was “satisfied that the existence of a constitutional remedy as that upon which the appellant relies does not affect the application of the principle of res judicata”.54.The doctrine of res judicata, in effect, allows a litigant only one bite at the cherry. It prevents a litigant, or persons claiming under the same title, from returning to court to claim further reliefs not claimed in the earlier action. It is a doctrine that serves the cause of order and efficacy in the adjudication process. The doctrine prevents a multiplicity of suits, which would ordinarily clog the courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively.55.It emerges that, contrary to the respondent’s argument that this principle is not to stand as a technicality limiting the scope for substantial justice, the relevance of res judicata is not affected by the substantial-justice principle of article 159 of the Constitution, intended to override technicalities of procedure. Res judicata entails more than procedural technicality, and lies on the plane of a substantive legal concept.56.The learned authors of Mulla, Code of Civil Procedure, 18th Ed 2012 have observed that the principle of res judicata, as a judicial device on the finality of court decisions, is subject only to the special scenarios of fraud, mistake or lack of jurisdiction (p 293):57.The essence of the res judicata doctrine is further explicated by Wigram, V-C in Henderson v Henderson (1843) 67 ER 313, as follows:58.Hence, whenever the question of res judicata is raised, a court will look at the decision claimed to have settled the issues in question; the entire pleadings and record of that previous case; and the instant case¾to ascertain the issues determined in the previous case, and whether these are the same in the subsequent case. The court should ascertain whether the parties are the same, or are litigating under the same title; and whether the previous case was determined by a court of competent jurisdiction. This test is summarized in Bernard Mugo Ndegwa v James Nderitu Githae & 2 others, (2010) eKLR, under five distinct heads: (i) the matter in issue is identical in both suits; (ii) the parties in the suit are the same; (iii) sameness of the title/claim; (iv) concurrence of jurisdiction; and (v) finality of the previous decision.59.That courts have to be vigilant against the drafting of pleadings in such manner as to obviate the res judicata principle was judicially remarked in ET v Attorney-General & another, (2012) eKLR, thus:
59.For res judicata to be invoked in a civil matter the following elements must be demonstrated:a)There is a former Judgment or order which was final;b)The Judgment or order was on merit;c)The Judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; andd)There must be between the first and the second action identical parties, subject matter and cause of action.(See Uhuru Highway Developers Limited v Central Bank of Kenya & others  eKLR and See the decision of the Court of Appeal in Nicholas Njeru v Attorney General & 8 others Civil Appeal 110 of 2011 (2013) eKLR)
62.In William Kabogo Gitau v Ferdinand Ndung’u Waititu  eKLR Onguto, J held as follows:59.In the cases of Aggrey Chiteri v Republic  eKLR and Edward Okongo Oyugi & 2 others v Attorney General  eKLR, this court held that the doctrine of res judicata applied with even force to constitutional litigation though it was important that caution is exercised lest a person whose rights were being violated a fresh was unjustly locked out from the wheels and seat of justice. So said the court in Edward Okongo Oyugi & 2 others v The Attorney General [supra]:“The application of the principle of res judicata has the potential of locking out a person from the doors of justice or even reaching the out-stretched arms of justice if the claim is disposed off without venturing into the merits. Consequently, the factors and circumstances ought always be nit-picked and caution exercised. The court ought to be in no doubt that the principle is applicable to the facts and circumstances of each case.”
64.The Court of Appeal, its impugned decision herein (Civil Appeal 42 of 2014), sought to settle the issue and made a determination as follows:
65.See also Kamunye & others v Pioneer General Assurance Society Ltd  EA 263. Simply put res judicata is essentially a bar to subsequent proceedings involving same issue as had been finally and conclusively decided by a competent court in a prior suit between the same parties or their representatives.
66.The Court of Appeal went on to make the following findings:i)The doctrine of res judicata is applicable to constitutional litigation just as in other civil litigation as it is a doctrine of general application with a rider, however, that it should be invoked in constitutional litigation in rarest and in the clearest of cases.ii)There is no legal requirement or factual basis for the submission that the doctrine must only be invoked and or ventilated through a formal application. It can be raised through pleadings as well as by way of preliminary objection.iii)The ingredients of res judicata must be given a wider interpretation; the issue in dispute in the two cases must be the same or substantially the same as in the previous case, parties to the two suits should be the same or parties under whom they or any of them is claiming or litigating under the same title and lastly, the earlier claim must have been determined by a competent court.
68.The Court of Appeal however did not attempt to define what ‘rarest and clearest’ cases were. The court only stated as follows as justification:
69.We may draw from the comparative lesson. From the Law of England and Wales, Halsbury’s Laws of England, Volume 12A, 5th Edition, 2015 provides as follows:
70.In the well-known decision of Wigram VC in Henderson v Henderson (1843) 3 Hare 100 at page 115, he held as follows:
71.Hon Mr Justice Vivian Lavan in the case of Foley v Smith  IEHC 299 (16 July 2004) discussed a party’s constitutional right to access court vis-à-vis the doctrine of res judicata as follows:
72.The courts in India have had occasion to grapple with the question. The Supreme Court of India in the case of Daryao and others v The State of U P and others 1962 SCR (1) 574 rejected a submission that the principle of res judicata could not apply to a petition for redress in respect of an infringement of fundamental right under the Constitution. The court held as follows:
74.The Court of Appeal in Trinidad and Tobago in the case of Endell Thomas v The Attorney General Privy Council Appeal No 20 of 1989 1990 (UKPC) 49 agreed with the reasoning and conclusion with the decision from India in Daryao and others v The State of U P (supra). The court held as follows:
75.The court however made an exception to the application of the principle of res judicata to where the applicant can demonstrate special circumstances warranting exemption. They held as follows:
76.The Supreme Court of Canada in Angle v Canada (Minister of National Revenue–MNR), 1974 CanLII 168 (SCC),  2 SCR 248 establishes the following three-part test for the application of issue estoppel:a.The same question has been decided;b.The decision said to create the estoppel was final;c.The parties to the previous decision or their privies are the same as the parties to the proceeding in which the estoppel is raised.
77.The Honourable Mr Justice Russell in the Federal Court of Canada in the case Sami v Canada (Citizenship and Immigration), 2012 FC 539 (CanLII) held as follows:(65)The preconditions for res judicata, as set out by the Supreme Court of Canada in Angle, above, are as follows:a.The same question was decided in earlier proceedings;b.The judicial decision which is said to create the estoppel was final; andc.The parties to the judicial decision were the same persons as the parties to the proceedings in which the estoppel was raised.(66)In the present case, the IAD determined that these preconditions were all met. The question to be determined, the genuineness of the applicant’s marriage, and the parties to the decision were the same as those in the previous IAD decision. The IAD is a court of competent jurisdiction with the authority to dispose of sponsorship appeals. Therefore, the previous decision was final, and the IAD was correct in finding that the preconditions for res judicata were met.(67)The case law has established that, where the preconditions are met, issue estoppel must apply unless special circumstances exist which would warrant hearing the case on its merits. The Supreme Court of Canada has determined that an evaluation of the special circumstances requires the decision-maker to ask whether, taking into account all of the circumstances, the application of issue estoppel would result in an injustice. See Danyluk, above, at paragraphs 64 to 67.”
78.The Supreme Court of Canada in the case of Danyluk v Ainsworth Technologies Inc, 2001 SCC 44 (CanLII),  2 SCR 460 elaborated the special circumstances which may permit a court to make an exception to the doctrine of res judicata as follows:64.Courts elsewhere in the Commonwealth apply similar principles. In Arnold v National Westminster Bank plc,  3 All ER 41, the House of Lords exercised its discretion against the application of issue estoppel arising out of an earlier arbitration, per Lord Keith of Kinkel, at p 50:65.In the present case Rosenberg JA noted in passing at pp 248-49 the possible existence of a potential discretion but, with respect, he gave it short shrift. There was no discussion or analysis of the merits of its exercise. He simply concluded, at p 256:66.In my view it was an error of principle not to address the factors for and against the exercise of the discretion which the court clearly possessed. This is not a situation where this court is being asked by an appellant to substitute its opinion for that of the motions Judge or the Court of Appeal. The appellant is entitled at some stage to appropriate consideration of the discretionary factors and to date this has not happened.67.The list of factors is open. They include many of the same factors listed in Maybrun in connection with the rule against collateral attack. A similarly helpful list was proposed by Laskin JA in Minott, supra. The objective is to ensure that the operation of issue estoppel promotes the orderly administration of justice but not at the cost of real injustice in the particular case. Seven factors, discussed below, are relevant in this case.”
79.The court listed the seven factors to include the following;(a)The Wording of the Statute from which the Power to Issue the Administrative Order Derives(b)The Purpose of the Legislation(c)The Availability of an Appeal(d)The Safeguards Available to the Parties in the Administrative Procedure(e)The Expertise of the Administrative Decision Maker(f)The Circumstances Giving Rise to the Prior Administrative Proceedings(g)The potential Injustice
80.Of particular interest the Supreme Court of Canada in the Danyluk case, on the factor of potential injustice, stated as follows:
81.We reaffirm our position as in the Muiri Coffee case that the doctrine of res judicata is based on the principle of finality which is a matter of public policy. The principle of finality is one of the pillars upon which our judicial system is founded and the doctrine of res judicata prevents a multiplicity of suits, which would ordinarily clog the courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively. To further bolster our position we borrow from the decision from India in Karam Chand another v Union Of India and others on 24 April, 2014 where it was restated the principles upon which the doctrine of res judicata is founded as follows:29.......it is clear that the rule of res judicata is mandatory in its application and should be invoked in the interest of public policy and finality. The matter which have actually been decided would also apply to the matters which have been impliedly and constructively decided by the court. These principles are to be applied to preserve the doctrine of finality rather than frustrate the same. The doctrine of res judicata is the combined result of public policy so as to prevent repeated taxing of a person to litigation. It is primarily founded on the following three maxims:(1)nemo debet bis vexari pro una et eadem causa: no man should be vexed twice for the same cause.(2)interest republicae ut sit finis litium: it is in the interest of the State that there should be an end to a litigation; and(3)res judicata pro veritate occipitur: a judicial decision must be accepted as correct......The doctrine of res judicata is conceived not only in the larger public interest which requires that all litigation must sooner than later come to an end but is also founded on equity, justice and good conscience.”
82.If we were to find that the doctrine does not apply to constitutional litigation, the doctrine may very well lose much of its legitimacy and validity. We say this in light of the fact that constitutional tenets permeate all litigation starting with the application of article 159 of the Constitutionin both civil and criminal litigation, and its application now embedded in all procedural statutes. Further article 50 on right to fair hearing and article 48 on access to justice are fundamental rights which every litigant is entitled to. Such a holding may very well lead to parties, that whenever they need to circumscribe the doctrine of res judicata, they only need to invoke some constitutional provision or other.
83.However, though the doctrine of res judicata lends itself to promote the orderly administration of justice, it should not be at the cost of real injustice. In the Danyluk Case from Canada the court cited the dissenting opinion of Jackson JA, in Iron v Saskatchewan (Minister of the Environment & Public Safety), 1993 CanLII 6744 (SK CA),  6 WWR 1 (Sask C A), at p 21 where he stated:
84.Just as the Court of Appeal in its impugned decision noted that rights keep on evolving, mutating, and assuming multifaceted dimensions it may be difficult to specify what is rarest and clearest. We however propose to set some parameters that a party seeking to have a court give an exemption to the application of the doctrine of res judicata. The first is where there is potential for substantial injustice if a court does not hear a constitutional matter or issue on its merits. It is our considered opinion that before a court can arrive at such a conclusion, it must examine the entirety of the circumstances as well address the factors for and against exercise of such discretionary power.
85.In the alternative a litigant must demonstrate special circumstances warranting the court to make an exception.
Were the learned Judges of the Court of Appeal justified in holding that the doctrine of res judicata applied to the current case; was Paluku the same as the Appellants herein?
86.We restate the elements that must be proven before a court may arrive at the conclusion that a matter is res judicata. For res judicata to be invoked in a civil matter the following elements must be demonstrated:a)There is a former Judgment or order which was final;b)The Judgment or order was on merit;c)The Judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; andd)There must be between the first and the second action identical parties, subject matter and cause of action
87.The first hurdle to resolve is that of parties. The ex-parte applicants in JR No 130 of 2011 were twenty three in number and included Rosmik Trading Co Limited, Athanase Kiro M Muhavirwa, Kambale Valeveka Kdephonse, Abdullatif Ibrahim, Kataliko Kaniki, Kasereka Mbayahi, Paluku Jean-Bosco, A Bagha, Kambale Kazingufu, Claude Mahengera, Kahindi Nzoka, Kambale Mahama, Paluku Maliyabwana, Katembo Mahembe, Kamate Maranzi, Lwanzo Mutumishi, Kakule Vikwirahangi, Kalume Kabunga Francois, Muhindo Kyavere Roger, Kasereka Vahwere Izron, Paluku Lusenge, Kambale Charles and Kambale Katsongo. The respondent in that matter was the Kenya Maritime Authority and the Office De Gestion Du Fret Multimodal (OGEFREM) was named as the Interested party.
88.The applicants in JR No 130 of 2011 are clearly not the same as in the present suit. The only common denominator are the Kenya Maritime Authority and the Office De Gestion Du Fret Multimodal (OGEFREM) named as 3rd and 4th respondents herein respectively.
89.The High Court did however note that the appellants herein and the applicants in JR No 130 of 2011 were similar in character and in the nature of the business engaged in. The court noted as follows:The ex parte applicants in the Judicial Review Application No 130 of 2011 were described in the ruling and Judgment of the court, respectively, as “a company, a firm and individuals engaged in the business of clearing and forwarding of goods for various importers of goods destined to the Democratic Republic of Congo” and “[Many of the imports into Democratic republic of Congo pass through the Port of Mombasa.] The applicants are involved in the clearing and forwarding some of those transit goods at that Port.”
90.Does the similarity qualify to determine that the appellants herein and the applicants in JR 130 of were litigating under the same title?
91.The Court of Appeal in their determination of the matters in question herein noted as follows:
92.The answer may be found in explanation no 6 of section 7 of the Civil Procedure Act which provides as follows:
93.The commonality is that the appellants herein and the applicants in JR 130 of 2011 were persons, juridical and natural, engaged in the business of clearing and forwarding of goods for various importers of goods destined to the Democratic Republic of Congo. They have the same interests and therefore the raise the complaints regarding the two certificates, FERI & COD. The answer is in the affirmative and we find we cannot fault the High Court or the Court of Appeal for concluding as such.
94.On whether the issues were directly and substantially in issue in the two suits, we compare the issues raised. In JR 130 of 2011 and in the present suit the courts noted that the parties were challenging the validity, scope and legality of the agreement which was the basis for the requirement of the two certificates (FERI & COD), as well as the authority of the respondents to continue levying freight charges.
95.The High Court in the present suit made two findings that since in JR No 130 of 2011 the imposition of “FERI” and “COD” was found to have a legal basis, the court conferred status upon the two certificates which is protected by the provision of law on estoppel by record by way of a Judgment in rem against the whole world, as opposed to Judgment in personam or inter partes which operates against the parties to the suit. The court observed that the decision in JR 130 of 2011 was on appeal in Mombasa Court of Appeal Civil Appeal No 254 of 2012 and the appellants could have participated in the appeal as persons affected by the decision of the High Court.
96.The court in JR 130 of 2011, summarized the grounds upon which the Judicial Review application was predicated on as follows:
97.From the face of it, it would appear that the issues in the present suit and JR 130 of 2011 are directly and substantially the same. However the appellants herein predicated their petition on inter alia grounds that the bilateral agreement should have been approved by Parliament in order to form party of Kenyan law and in failing to do so, the respondents contravened article 2. They further alleged that the respondents herein purported to usurp to the role of Parliament and in doing so contravened articles 94(5) and (6) of the Constitution. They further alleged that the FERI and COD certificates threatened to infringe their right to property under articles 40(1)(a) and (2)(a) when the respondents threatened to arbitrarily deprive them of their property. The court sitting in determination of a judicial review application did not have jurisdiction to render itself on these issues. We therefore find that the principle of res judicata was wrongly invoked on this ground.
98.The next issue to address is regarding whether the issues in a current suit must have been decided by a competent court. Whether the issue in a current suit has been decided by a competent court and whether the matter in dispute in the former suit between the parties was directly or substantially in dispute between the parties in the suit where the doctrine is pleaded as a bar are closely related. There is a Judgment rendered in JR 130 of 2011 delivered on 27th September 2012 by a competent court (Tuiyott, J(as he then was)). However, the court was resolving an application for Judicial Review order seeking:(a)Prohibition restraining the respondents from demanding from the ex-parte applicants or any other persons FERI Certificate or Certificate of Destination issued by the interested party prior to release of any goods imported through the port of Mombasa or through any other Kenyan Port.(b)Mandamus compelling the respondents to release all goods that have complied with all lawful customs procedures other than the requirement for the aforesaid FERI Certificate and Certificate of Destination.”
99.What is in issue here is constitutional petition where the appellants were seeking the following orders from the High Court:(a)A conservatory order does issue restraining the 1st, 2nd and 3rd respondents from levying any fees that are not provided for under the Bilateral Agreement dated May 30, 2000, thereafter Gazetted on the 30th of August 2002 and more specifically restraining them from demanding for the payment of any monies, taxes or levies in addition to the collection of the commission specified of only 1.8% on the Gross Freight Charges paid by shipping lines on imported cargo destined for the Democratic Republic of Congo, and then only on the condition that all such payments must and shall be made or effected and receipted only to and by the Merchant Shipping Office.(b)A declaration that any provision(s) not having the force of law in Kenya and which require the payment of anything above the sum of 1.8% of the Gross Freight Charges paid by shipping lines on imported cargo destined for the Democratic Republic of Congo are in contravention of the petitioners’ fundamental rights and freedoms under article 95 of the Constitutionand are null and void ab initio.(c)A declaration that the Bilateral Agreement entered into on the 30thday of May, 2000 and known as the “Agreement On Maritime Freight Management” is null and void and that its continued enforcement by anybody or person as part of the Laws of Kenya contravenes the petitioners’ fundamental rights and freedoms under articles 2, 40 and 95 of the Constitutionand is therefore null and void ab initio.(d)A declaration be made that any and all provisos not having the force of law in Kenya and that contravene the petitioners’ fundamental rights and freedoms under article 40 of the Constitutionbe held to be null and void ab initio.(e)A declaration be made that any provisions of the agreement that contravene the terms of article 2 of the Kenyan Constitution be held to be null and void ab initio.(f)General damages(g)Punitive damages
100.The considerations for judicial review were aptly captured by G V Odunga, J in the case of Republic v Chesang (Ms) Resident Magistrate & 2 others ex parte Paul Karanja Kamunge t/a Davisco Agencies & 2 others  eKLR where he held as follows:“25.However, it is important to remember that Judicial Review is a special supervisory jurisdiction which is different from both (1) ordinary (adversarial) litigation between private parties and (2) an appeal (rehearing) on the merits. The question is not whether the Judge disagrees with what the public body has done, but whether there is some recognisable public law wrong that has been committed. Whereas private law proceedings involve the claimant asserting rights, judicial review represents the claimant invoking supervisory jurisdiction of the court through proceedings brought nominally by the Republic. See R v Traffic Commissioner for North Western Traffic Area ex parte Brake  COD 248.26.Judicial review is a constitutional supervision of public authorities involving a challenge to the legal and procedural validity of the decision. It does not allow the court of review to examine the evidence with a view of forming its own view about the substantial merits of the case. It may be that the tribunal whose decision is being challenged has done something which it had no lawful authority to do. It may have abused or misused the authority which it had. It may have departed from procedures which either by statute or at common law as a matter of fairness it ought to have observed. As regards the decision itself it may be found to be perverse, or irrational, or grossly disproportionate to what was required. Or the decision may be found to be erroneous in respect of a legal deficiency, as for example, through the absence of evidence, or through a failure for any reason to take into account a relevant matter, or through taking into account an irrelevant matter, or through some misconstruction of the terms of the statutory provision which the decision maker is required to apply. While the evidence may have to be explored in order to see if the decision is vitiated by such legal deficiencies, it is perfectly clear that in a case of review, as distinct from an ordinary appeal, the court may not set about forming its own preferred view of the evidence. See Reid v Secretary of State for Scotland  2 AC 512.”
101.Article 47 of the Constitutionof Kenya, 2010 and subsequent enactment of the Fair Administrative Action Act No 4 of 2015 have sought to allow the courts to consider certain aspects of merit when considering an application for judicial review. The Court of Appeal in the case of Suchan Investment Limited v Ministry of National Heritage & Culture & 3 others  KLR attempted to reconcile this expanded context as follows:“ 54.The law on judicial review of administrative action is now to be found not exclusively in common law but in the principles of article 47 of Constitution as read with the Fair Administrative Action Actof 2015. The Act establishes statutory judicial review with jurisdictional error in section 2(a) as the centre piece of statutory review. The Act provides a constitutionally underpinned irreducible minimum standard of judicial review; the Act is built on the values of expeditious, efficient, lawful, reasonable, impartial, transparent and accountable decision making process in articles 47 and 10(2)(c) of the Constitution. The extent to which the common law principles remain relevant to administrative review will have to be developed on a case-by-case basis as the courts interpret and apply the provisions of the Fair Administrative Action Act and the Constitution. As correctly stated by the High Court in Martin Nyaga Wambora v Speaker of the Senate  eKLR it is clear that they - articles 47 and 50(1) - have elevated the rules of natural justice and the duty to act fairly when making administrative, judicial or quasi judicial decisions into constitutional rights capable of enforcement by an aggrieved party in appropriate cases.An issue that was strenuously urged by the respondents is that the appellant’s appeal is bad in law to the extent that it seeks to review the merits of the Minister’s decision while judicial review is not concerned with merits but propriety of the process and procedure in arriving at the decision. Traditionally, judicial review is not concerned with the merits of the case. However, section 7(2)(l) of the Fair Administrative Action Actprovides proportionality as a ground for statutory judicial review. Proportionality was first adopted in England as an independent ground of judicial review in R v Home Secretary; Ex parte Daly  2 AC 532. The test of proportionality leads to a “greater intensity of review” than the traditional grounds. What this means in practice is that consideration of the substantive merits of a decision play a much greater role. Proportionality invites the court to evaluate the merits of the decision; first, proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions; secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations; thirdly, the intensity of the review is guaranteed by the twin requirements in article 24(1) (b) and (e) of the Constitution to wit that the limitation of the right is necessary in an open and democratic society, in the sense of meeting a pressing social need and whether interference vide administrative action is proportionate to the legitimate aim being pursued. In our view, consideration of proportionality is an indication of the shift towards merit consideration in statutory judicial review applications.Analysis of article 47 of the Constitutionas read with the Fair Admini strative Action Act reveals the implicit shift of judicial review to include aspects of merit review of administrative action. Section 7(2)(f) of the Act identifies one of the grounds for review to be a determination if relevant considerations were not taken into account in making the administrative decision; section 7(2)(j) identifies abuse of discretion as a ground for review while section 7(2)(k) stipulates that an administrative action can be reviewed if the impugned decision is unreasonable. Section 7(2) (k) subsumes the dicta and principles in the case of Associated Provincial Picture Houses Ltd v Wednesbury Corp  1 KB 223 on reasonableness as a ground for judicial review. Section 7(2)(i) and (iv) deals with rationality of the decision as a ground for review. In our view, whether relevant considerations were taken into account in making the impugned decision invites aspects of merit review. The grounds for review in section 7(2)(i) that require consideration if the administrative action was authorized by the empowering provision or not connected with the purpose for which it was take and the evaluation of the reasons given for the decision implicitly require assessment of facts and to that extent merits of the decision. It must be noted that the even if the merits of the decision is undertaken pursuant to the grounds in section 7(2) of the Act, the reviewing court has no mandate to substitute its own decision for that of the administrator. The court can only remit the matter to the administrator and or make orders stipulated in section 11 of the Act. On a case by case basis, future judicial decisions shall delineate the extent of merit review under the provisions of the Fair Administrative Action Act.In Mbogo & another v Shah (1968) EA 93 at 96, this court stated that an appellate court will not interfere with the exercise of discretion by a trial court unless the discretion was exercised in a manner that is clearly wrong because the Judge misdirected himself or acted on matters which it should not have acted upon or failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion. The dictum in Mbogo v Shah (supra) and the principles of rationality, proportionality and requirement to give reasons for decision are pointers towards the implicit shift to merit review of administrative decisions in judicial review.The essence of merit review is the power to substitute a decision. Under the Fair Administrative Action Act, there is no power for the reviewing court to substitute the decision of the administrator with its own decision. This imposes a limit to merit review under the Act. Section 11(1)(e) and (h) of the akn/kFair Administrative Action Act, there is no power for the reviewing court to substitute the decision of the administrator with its own decision. This imposes a limit to merit review under the Act. Section 11(1)e/act/2015/4 Fair Administrative Action Act}} permits the court in a judicial review petition to set aside the administrative action or decision and or to declare the rights of parties and remit the matter for reconsideration by the administrator. The power to remit means that decision making on merits is the preserve of the administrator and not the courts.”
102.Despite the shift from common law to codification in the Constitutionand the Fair Administrative Action Act, the purpose of the remedy of judicial review is concerned with reviewing not the merits of the decision in respect of which the application for judicial review is made, but the decision–making process itself. This finding is further reinforced by the fact that though the court in determining a judicial review application may look at certain aspects of merit and even set aside a decision, it may not substitute its own decision on merit but must remit the same to the body or office with the power to make that decision. In this regard we cite the decision of Lord Hailsham LC in Chief Constable of North Wales Police v Evans (1982) 3 All ER at pg 141 said of the remedy of judicial review as follows:
103The High Court in exercising its mandate to hear Constitutional Petitions, it does so pursuant to articles 22, 23 and 165 of the Constitution. Article 22(1) provides as follows:
104.Article 23(1) provides as follows:23.(1)The High Court has jurisdiction, in accordance with article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights”.
105.Article 23(3) provides the remedies that the court may grant and in addition to judicial review orders they include a declaration of rights; an injunction; a conservatory order; a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under article 24; and an order for compensation.
106.Article 165(3) provides as follows regarding the High Court’s jurisdiction:(3)Subject to clause (5), the High Court shall have—(a)unlimited original jurisdiction in criminal and civil matters;(b)jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;(c)jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under article 144;(d)jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of—(i)the question whether any law is inconsistent with or in contravention of this Constitution;(ii)the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;(iii)any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and(iv)a question relating to conflict of laws under article 191; and(e)any other jurisdiction, original or appellate, conferred on it by legislation.
107.The court when determining a constitutional petition is empowered to look beyond the process and not only examine but delve into the merits of a matter or a decision. The essence of merit review is the power to substitute a decision which the court can do when determining a constitutional petition. Further the court is further empowered to grant not just judicial review orders but any other relief is deems fit to remedy any denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. This court in its decision in Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (Amicus Curiae)  eKLR went ahead to reaffirm use of structural interdicts and supervisory orders to redress the violation of a fundamental right in order to allow the development of court-sanctioned enforcement of human rights as envisaged in the Bill of Rights.
108.We arrive at the inescapable conclusion that the High Court in determining a judicial review application, exercises only a fraction the jurisdiction it has to determine a constitutional petition. It therefore follows that a determination of a judicial review application cannot be termed as final determination of issues under a constitutional petition. The considerations are different, the orders the court may grant are more expanded under a constitutional petition and therefore the outcomes are different.
109.The court in hearing a constitutional petition may very well arrive at the same conclusion as the court hearing a judicial review application. However, the considerations right from the outset are different, the procedures are different, the reliefs that the court may grant are different, the court will be playing fairly different roles.
110.We consequently arrive at the conclusion that the Court of Appeal erred in holding that the doctrine of res judicata applied to the current case. The Court of Appeal should have at that point found that the High Court was wrong in its conclusion.