A businessman who has been declared a vexatious litigant and ordered to pay the government and a private firm more than Sh300,000 for filing fraudulent multiple suits about lost teeth has taken his battle to the Court of Appeal.
Renowned “matumbo” seller Julius Odhiambo Oduor is not happy with how Justice Kizito Magare handled his case at the High Court and wants his verdict, which not only denied him compensation but also barred him from filing suits without the authority from the Office of the Attorney General (AG).
“Take notice that Mr Oduor, being dissatisfied with Justice Magare’s judgment, delivered on May 14, intends to appeal against the said verdict,” Mr Oduor said in a Notice of Appeal through Opwapo and Company Advocates.
In the judgment, Mr Oduor was instructed to pay Gati Cleaning Agency Ltd, owned by Jonathan Wapukhulu Sh175,000 and AG Sh180,000 as costs of the suit.
Additionally, Justice Magare ordered Mr Oduor to reimburse all funds paid under the decrees, along with costs and auctioneers. In case of default, the judgment debtors in those instances are free to hire auctioneers to recover their funds.
"Vexatious litigant by dint of this judgment, shall not file any proceedings in the Republic of Kenya against any person or entity without prior written consent under the hand of the AG, and where such leave is granted, without disclosing that very fact in pleadings," said the judge.
Mr Oduor had filed lawsuits against several parties, including Mr Wapukhulu, in order to seek compensation for a lost tooth.
The court in Mombasa was left questioning whether the businessman had lost eight teeth, four teeth, two teeth, or none.
The issue of the number of teeth lost arose from an incident in which Mr Oduor was reportedly involved in 2015.
According to court documents, on January 2, 2015, Mr Oduor was riding a bicycle from Mikindani slaughterhouse while carrying 90kgs of assorted beef, liver and matumbo.
Unfortunately, he fell into a four-foot deep pit that had been allegedly dug by Gati Cleaning Agency. As a result of the accident, Mr Oduor took legal action later that same year and sued the company for the injuries he sustained.
Mr Julius Odhiambo Oduor, who was allegedly involved in an accident in January 2015, shows an x-ray of his mouth at his home in Bangladesh slums in Mombasa County on June 14, 2024.
Photo credit: Wachira Mwangi | Nation Media Group
“The hole was carelessly left by the roadside, posing a danger to me and other members of the public," he stated in his case before a magistrate's court.
Mr Oduor reported losing lower front teeth No. 31 and No. 34, as well as sustaining injuries from a blunt object to the forehead, both cheeks and the right ankle.
Consequently, he requested the court to compensate him for these injuries.
The company's director refuted any responsibility for the accident and urged the court to reject Mr Oduor's claim.
In a ruling issued on February 22, 2019, the magistrate's court held the company fully accountable for the accident, awarding Mr Oduor general and special damages of Sh455,000 and 46,400 respectively. Mr Oduor was also entitled to the costs of the lawsuit and interest on the awarded amount.
Rather than paying the damages, the company lodged an appeal with the High Court challenging the ruling and requested the judge to overturn the decision, claiming that the magistrate had erred in law and fact in finding it liable.
During the appeal’s hearing, the AG was granted permission to participate in the appeal after he requested. The AG came across new evidence that it claimed would assist the court in reaching a fair verdict.
The new evidence revealed that Mr Oduor, had filed multiple cases related to the same accident and teeth, obtaining a judgment in each case.
The court heard that in 2004, he sued Ratilal Naran Mistry, alleging traumatic contusion of two lower incisor teeth (no. 31 and 41) after being hit by a vehicle driven by Naran along Mwembe Tayari Road.
It was also discovered that he had filed CMCC No. 1750 of 2003, over the loss of lower incisors.
Additionally, in 2014, he filed CMCC 1989 of 2014 after falling into an open sewer at work, losing two anterior lower front incisor teeth (no. 31, 41,) and teeth no 38, and 48. In 2015, he filed CMCC No. 112 of 2015, losing two more teeth.
Justice Magare, presiding over the appeal, noted that the only consistent factor was that the teeth lost in the current appeal had already been lost before the alleged accident.
"I was wondering why the two teeth that Mr Oduor lost have not grown again. I take judicial notice under Section 60(1) that teeth cannot grow once removed. It is not the common way nature behaves. That upon loss of teeth, teeth could not regrow at his age," ruled the judge.
In his analysis, the judge observed that this was one of the peculiar cases he has encountered. This was because Mr Oduor had been investigated, revealing that the alleged loss of tooth numbers 31 and 41 was claimed in four different court cases.
Justice Magare pointed out that there can be no other conclusion than that Mr Oduor, in his quest for justice, engaged in injustices towards others through his fraudulent actions.
The judge highlighted that the fraudulent misrepresentation uncovered in this case went unnoticed by the trial magistrate and the other parties involved in the lawsuit. However, he emphasized that a fraudulently obtained judgment cannot stand.
"In my analysis, Mr Oduor filed a multiplicity of suits while concealing the prior suits. In each he pleaded similar injuries. He managed to get away with this illegality and in fact obtained the judgment that is the subject to this appeal. It is not the responsibility of this court to aid a party in wrong doing. Courts frown at parties who conceal facts. In any event, a party cannot benefit from an illegality," he noted.
The judge stated that Oduor's case was a fraudulent claim, and there was no evidence to hold the company liable.
According to the judge, the accident and loss of teeth did not occur, and Mr Oduor conspired with professionals to make fraudulent claims.
The court recognised that the company was an innocent party who could not have established the misrepresentation during the case, resulting in an unfavourable judgment.
"To this court, the judgment was tainted with illegality due to non-disclosure of facts and fraudulent misrepresentation. The judgment is as such a nullity and non-existent," said the judge
"You cannot put something on nothing and expect it to stay there. It will collapse. The judgment by the court, being based on a fraudulent claim perpetrated against the firm must be set aside," he ruled.
Further, the judge said the same had been compensated in other suits, also filed fraudulently.
On general damages, Justice Magare said there were no damages proved in this case.
"I note that I have made a positive finding of fraud in all cases filed by Mr Oduor. The judgment debtors in those cases are entitled to a refund of all amounts paid including auctioneers’ charges in all the cases he filed," he said.
