1.The 4th respondent Zege Technologies filed a notice of preliminary objection dated July 19, 2021 in the following terms:a.In Milimani Law Court’s miscellaneous application criminal case No 2542 of 2017, Republic vs Co-operative Bank-head office NIC Bank-head office, Sidian Bank-head office and Equity Bank-head office, the Investigating Officer reported to court that the investigation team conducted extensive investigations and came to the conclusion that there would be no impact in terms of evidential value if Zege Technologies were allowed to access their money. The 4th respondent’s cooperative account number 01109421264900 was unfrozen vide court order dated September 27, 2017 and they were allowed access to their funds invested at Britam Insurance vide court order dated December 11, 2017 both orders issued by Hon Riany (SRM). No appeals have been preferred against the orders. The principle of res judicata thus applies to the 4th respondent as relates to the instant petition and the prayers that it seeks against them and more specifically prayers 4, 5 and 6 of the petition dated October 6, 2020.b.The petitioners have not invoked and or exhausted the alternative dispute resolution as per clause 6.1 of the terms of service that they subscribed to upon visiting and taking up the services offered on public like’s website in so far as their alleged dispute arises from the said terms of service.c.The court lacks jurisdiction to entertain the petition dated October 6, 2020 as per the terms of service that the petitioners subscribed to upon visiting and taking up the services offered on public likes, the 2nd respondent’s website and clauses 6.2, 6.3 and 6.4 respectively.d.The honourable court lacks jurisdiction to entertain the petition dated October 6, 2020 for the reason that it is not properly before the court, as the petitioners seek that the respondents be publicly and or privately prosecuted for embezzlement, fraud and obtaining by false pretense. This is the sole mandate of the magistrate’s court under section 6 of the Magistrate’s Court Act, 2015, section 4 and 89 of the Criminal Procedure Code and sections 312 and 313 of the Penal Code.e.Granting the orders sought herein would totally prejudice the 4th respondent who has been irregularly brought to this court due to the fact the services were exclusively offered by the 2nd respondent hence the relationship was between the consumer and the 2nd respondent and not with the 4th respondent.f.The petition is misconceived, frivolous, scandalous and an abuse of the court process.g.The petition should be dismissed with costs to the 4th respondent.
2.The petition was disposed of by way of written submissions which are on record and have been given due consideration.
3.The issue for consideration is whether the preliminary objection as a whole has merit. The celebrated case of Mukisa Biscuits Manufacturing Ltd –vs- West End Distributors (1969) EA 696 succinctly states what a preliminary objection is. In that case, it was held that:
4.The 4th respondent asserts that the petition herein is res judicata by virtue of a court order issued in Milimani Magistrate’s Court, as stated in the grounds in support of the preliminary objection herein.
6.The 4th respondent contends that the matter has been heard and the court allowed it to access its money held in various bank accounts and invested in an insurance scheme. It is however not clear whether the criminal case alluded to by the 4th respondent was concluded. It is also not in doubt that the case mentioned is a criminal case instituted by the Republic.
7.The test for determining the application of the doctrine of res-judicata in any given case is spelt out under section 7 of the Civil Procedure Act which provides:
8.In Independent Electoral & Boundaries Commission vs Maina Kiai & 5 others (2017) eKLR, the Supreme Court while considering the said provision held that all the elements outlined thereunder must be satisfied conjunctively for the doctrine to be invoked. That is: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.
9.Having set out the yardstick for determining whether a suit is res judicata I am not satisfied that the instant petition is res judicata. The parties in the instant petition are different from the parties in Criminal Case No 2542 of 2017 whose status, in any event has not been stated, whether concluded or is still pending before that court.
10.Equally important is the similarity of subject matter in the previous and the instant suit. Whereas the case alluded to as having been concluded although no proceedings were supplied to this court was a criminal case, it is trite that sanctions and or penalties in a criminal case are different from the orders grantable in a constitutional petition. The issues in the two cases cannot be similar in the circumstances.
11.The other preliminary objection also stems from what the 4th respondent terms as failure to exhaust the dispute resolution mechanisms provided by the terms of service of Public Likes. That the failure to exhaust the mechanisms ousts the jurisdiction of this court to hear and determine the petition herein.
12.In advancing the objection, the 4th respondent makes reference to clauses 6.2, 6.3 and 6.4 of the terms of service. Variably, these clauses state that the applicable law in case of disputes and in the event that arbitration fails are the laws applicable in the state of Michigan (United States).
13.The doctrine of exhaustion of remedies disqualifies a party from prosecuting an action before a court of law until that party has exhausted the alternative methods of dispute resolution provided by the statute of the contract. In essence, unless and until the party takes the alternative route provided, the court will not entertain the matter.
15.The 4th Respondent, as supported by the 1st Respondent submits that time and again it has been said that where there exists other sufficient and adequate avenue or forum to resolve a dispute, a party ought to pursue that avenue or forum and not invoke the court process if the dispute.
19.In the instant petition, the 4th respondent challenges the jurisdiction of this court until the petitioners exhaust the alternative dispute resolution mechanism provided on the platform.
20.I have considered the clauses providing the dispute resolution modules and the court with the jurisdiction incase arbitration fails and my finding on the same is that the clauses therein bind the parties as there has been no application to declare the said clauses unconscionable. The parties having submitted themselves to the application of foreign laws and jurisdiction, one party cannot run away from that agreement that was freely entered into and by pass the process agreed upon. The petitioners have not proved that it is impractical to implement the clauses in so far as the same provides for the application of foreign laws.
21.It has not been demonstrated as to what hardship the parties will suffer if they subject the dispute to arbitration or if they submit to the application of the foreign jurisdiction as per the terms of service.
22.For the above reasons, and to that extent only, I find merit in the second part of the preliminary objection raised by the 4th respondent.
23.On what orders this court should make, I find that the appropriate order to make in this matter is to strike out the petition which I hereby do and strike it out with an order that each party do bear their own costs of the Petition and of the preliminary objection.
24.This file is hereby closed.
25.I so order.