5.Counsel for the 3rd Respondent submitted that the Plaintiff’s suit offends the mandatory provisions of Section 7 of the Civil Procedure Act; that this court lacks jurisdiction as this suit is res judicata and that there is an existing judgement delivered by this court on 22nd June 2018 in Nairobi ELC Petition No. 32 of 2017 as consolidated with ELC Petitions 30 and 35 of 2017, Kenya Association of Manufacturers and 3 Others vs Cabinet Secretary, Ministry of Environment and Natural Resources and 3 Others  eKLR.
6.Counsel laid out the prayers that were sought in Kenya Association of Manufacturers and 3 Others vs Cabinet Secretary, Ministry of Environment and Natural Resources and 3 Others  eKLR and submitted that the Plaintiffs have reiterated the same and similar issues as deliberated and adjudicated by this court in the former case.
7.On the Plaintiff’s issue that the ban was not based on any regulation, Counsel submitted that the court in Kenya Association of Manufacturers vs CS Ministry of Environment and 3 others (2018) eKLR expounded that Article 70 of the Constitution recognizes the precautionary principle, and that the court relied on Section 3 and 86 of Environmental Management and Coordination Act to arrive at its decisions.
8.Counsel submitted that the 1st Respondent had both the constitutional and statutory basis to prohibit the use, manufacture and importation of the affected plastic bags under Sections 3 and 86 of EMCA and that on the issue raised by the Plaintiffs that there was no stakeholder participation in the development of the plastics ban, the court in Kenya Association of Manufacturers vs CS Ministry of Environment and 3 others (2018) eKLR held that it was satisfied that the Cabinet Secretary, Ministry of Environment and NEMA conducted public participation before issuing the impugned Gazette Notice.
9.Counsel submitted that the court in Kenya Association of Manufacturers and 3 others vs Cabinet Secretary, Ministry of Environment and Natural Resources and 3 Others  eKLR held that although the impugned Gazette Notice was not forwarded to the Clerk of the National Assembly as contemplated by Section 11 of the Statutory Instruments Act, it was laid on the table of the Honourable Olago Aluoch MP through a public Petition pursuant to Article 119 of the Constitution and Standing Order No. 220.
10.Counsel relied on the case of William Koross vs Hezekiah Kiptoo Komen & 4 Others  eKLR which outlined the principles that underlies res judicata. They also relied on Ngugi vs Kinyanjui & 3 others  KLR 146 (para 147) and the Court of Appeal Cases of Siri Ram Kaura vs M.J.E. Morgan CA 71/1960 (1961) EA 462, Uhuru Highway Development Ltd vs Central Bank of Kenya, Exchange Bank Ltd (in voluntary liquidification) and Kamlesh Mansukhlal Pattni.
11.The 3rd Respondent’s Counsel submitted that the Plaintiff’s suit is founded on the same cause of action, the same issues, same facts and same circumstances that have been dealt with and that constitutes abuse of court process. They relied on the Black’s Law Dictionary definition of ‘abuse’.
12.Counsel sought to rely on the doctrine of ex turpi causa non oritur actio, which provides that a Plaintiff will be unable to pursue legal relief and damages if it arises in connection with their own tortious act. They submitted that the Plaintiff’s business transaction was declared illegal and punishable under the laws of Kenya and that based on the operation of the law, the Plaintiffs are now seeking damages as against the transgression of a positive law.
13.Counsel for the 4th Respondent filed Submissions in support of the two applications dated 21st October 2022. Counsel relied on the case of Mukisa Biscuits vs West End  EA 696 which defined a preliminary objection as that which raises a pure question of law. They also relied on the case of Owners of the Motor Vessel ‘Lillian S’ where the court held that jurisdiction is everything.
14.Counsel submitted that this suit is res judicata, contrary to Section 7 of the Civil Procedure Act; that the matter in dispute has already been considered by a competent court of law and that this suit is an attempt to relitigate a matter that has already been tried and concluded in Kenya Association of Manufacturers vs CS Ministry of Environment and 3 Others (2018) eKLR.
15.Counsel relied on the cases of Independent Electoral and Boundaries Commission vs Maina Kiai & 5 Others (2017) eKLR, which laid out the elements of res judicata, and E.T.V vs Attorney General & Another (2012) eKLR.
Analysis and Determination
16.The 3rd and 4th Defendants have challenged the jurisdiction of this court to hear and determine this suit on grounds of res judicata. They claim that the issues that have been raised by the Plaintiffs through this suit were heard and settled by the court in Kenya Association of Manufacturers vs CS Ministry of Environment and 3 Others (2018) eKLR. The Plaintiffs did not file any response or submissions in response.
17.The legal framework of res judicata is set out in Section 7 of the Civil Procedure Act as follows:
18.The Supreme Court case of John Florence Maritime Services Limited & Another vs Cabinet Secretary for Transport and Infrastructure & 3 Others  eKLR delimited the operation of the doctrine of res judicata as follows:
19.The Supreme Court further laid out the elements that should be met for one to invoke res judicata in a civil suit: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).”
20.Guided by the above decisions, it is the duty of this court to consider the suit herein as against Kenya Association of Manufacturers vs CS Ministry of Environment and 3 Others (2018) eKLR, in order to determine whether this suit is res judicata.
21.In considering the question of whether the parties in the two suits are the same, or litigating under the same title in the case herein, the Plaintiff has enjoined the Cabinet Secretary, the Ministry of Natural Resources and Environment, the Director General, National Environment Management Association and the Attorney General.
22.The case of Kenya Association of Manufacturers vs CS Ministry of Environment and 3 Others (2018) eKLR was a consolidation of three suits, whose parties included the Kenya Association of Manufacturers, Fredrick Gichuhi Njenga, Stephen Mwangi and Okiya Omtatah Okoiti as the Petitioners and the Cabinet Secretary, Ministry of Environment and Natural Resources, the Attorney General, National Environment Management Authority and Multytouch International as the Respondents.
23.It is therefore apparent that while the Plaintiff herein was not a party to the suit in Kenya Association of Manufacturers vs CS Ministry of Environment and 3 Others (2018) eKLR, it has joined as Defendants the very same parties involved in the latter suit.
24.Explanation 6 to Section 7 of the Civil Procedure Act provides that where parties have litigated with respect to a public right, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.
25.In the same manner, in challenging the legality of the gazette notice banning the use and manufacture of plastic bans, the parties in the 2018 suit were suing on behalf of all persons interested in such a right, including the Plaintiff in this case.
26.The Plaintiff has sought general damages, special damages, costs of the suit and interest on the damages at court rates. The Plaintiff avers that it was engaged in the business of manufacturing plastic and polythene bags, which business it had carried on for 15 years.
27.According to the Plaintiff, in an unforeseen move, on 14th March 2017, via a gazette notice No. 31, Vol CXIX, the 1st Defendant declared a ban on the use, manufacture and importation of all plastic bags used for household and commercial packaging, which ban was to take effect 6 months from the date of the notice.
28.The Plaintiff’s claim is that this ban is illegal as it was not based on any regulations; that there was no stakeholder participation and/or public participation in the development of the policy and that the process leading up to the gazette notice did not comply with the Constitution and the Statutory Instruments Act.
29.On the other hand, in Kenya Association of Manufacturers v CS Ministry of Environment and 3 others (2018) eKLR, the Petitioners had challenged the constitutionality of the gazette notice banning the manufacture, use and importation of plastic bags, on grounds of lack of public participation, lack of requisite statutory authority and in contravention of Sections 5, 6, 8 (1), 11(1) and (2) of the Statutory Instruments Act, No 23 of 201.
30.This dispute was heard and determined by a three-judge bench, which entered a judgement on merit on 22nd June 2018. It is further not disputed that the court in the 2018 case had the jurisdiction to hear and determine the said suit. With respect to the issue of public participation, the court weighed the evidence before it and was satisfied that the 1st and 3rd Respondents conducted public participation before issuing the impugned Gazette Notice.
31.The court also held that the requirement for parliamentary scrutiny of statutory instruments was met.
32.The cause of action and subject matter in this case and in the former case, Kenya Association of Manufacturers vs CS Ministry of Environment and 3 Others (2018) eKLR, appear to be identical, the only difference being that the Plaintiff in this case has sought remedies for damages, rather than declaratory orders.
33.The Plaintiff cannot purport to seek an alternative remedy from that initially claimed in the former suit, where the substantive question on the legality of the ban had already been settled. This would not only open up the court to an avalanche of suits by disgruntled business people, but would also run contrary to the legal principle of ex turpi causa non oritur actio, which was defined in Republic vs Ministry of Roads & Another Ex part Vipingo Ridge Limited & Another (2016) eKLR as follows:
34.This was further expounded in Scott vs Brown, Denning & Mcnab Company (3)  2QB 724 at page 728 as quoted in Michael Mwaura Njoroge vs Peter Kamau Munene; Beatrice Kori (Interested Party)  eKLR:
35.The legality of the ban of manufacturing plastic bags has already been handled by a court of competent jurisdiction. That being so, this court cannot delve into the issue of whether the Plaintiff is entitled to damages for the said ban, because damages cannot arise from an illegality. This court therefore finds that the current suit is res judicata.
36.The matter suit is therefore dismissed with no order as to costs.