[2022] KEHC 15130 (KLR)

Andolo v Pinnacle Devolpers Limited & 4 others (Civil Case 18 of 2017) [2022] KEHC 15130 (KLR) (4 October 2022) (Ruling)

Neutral citation: [2022] KEHC 15130 (KLR)

Republic of Kenya

In the High Court at Kajiado

Civil Case 18 of 2017

SN Mutuku, J

October 4, 2022

Between

Donald Muhonda Andolo

Plaintiff

and

Pinnacle Devolpers Limited

1st Respondent

Douglas Okeyo Oluoch

2nd Respondent

Bon – Arch Associates Ltd

3rd Respondent

Peter Oluoch Ojwang

4th Respondent

Nairobi Connection Services Auctioneers

5th Respondent

Ruling

1. The Applicant brought this application through a Notice of Motion dated 25th March, 2022 under Sections 1A, 1B, 3A and 63E of the Civil procedure Act, Order 22 Rule 22, Order 42 Rule 6(1) and (2) of the Civil Procedure Rules, seeking the following orders:i.Spent.ii.Spent.iii.That this Honourable court be pleased to grant an order of temporary injunction restraining the Defendants/Respondents by themselves, their employees, agents, servants and/or any person acting under their instructions restraining them from trespassing, entering into the Plaintiffs/Applicants premises, seizing and taking away the proclaimed properties of the Plaintiff/Applicant pending hearing and determination of this Application.iv.That this Honourable Court be pleased to set aside the illegal and irregular process of execution and in particular the impugned proclamation of attachment of the Plaintiffs/Applicants movable properties Notice dated March 24, 2022. v.That this Honourable Court be pleased to order a stay of execution of the Judgement and Decree of the High Court of Kenya at Kajiado in HCC No. 18 of 2017 by Honourable Justice E.C Mwita delivered on April 9, 2021 pending hearing and determination of court of Appeal Civil Application No. E031 of 2022 for stay of execution.vi.That the costs of the application be provided for.

2. This application is supported by an affidavit sworn by Donald Muhonda Andolo on March 25, 2022. It is case that following the taxation of the 1st and the 2nd Respondents’ Bills of Costs dated January 24, 2022 and 3rd and 4th Respondents’ Bill of costs dated January 19, 2022 by the Deputy Registrar, the 4th Respondent instructed the 5th Respondent to proclaim his goods on March 24, 2022 whereupon he was issued with a proclamation notice dated March 24, 2022 for an amount of Kshs. 1,192,412. 72 plus their fees of 110,000.

3. It is his contention that the proclamation notice was illegal, unlawful, irregular, null and void ab intio given that neither the 1st and 2nd Respondents nor the 3rd and 4th Respondents have served him with a certificate of taxation or file an application for execution and in particular apply for warrants of attachment prior to the impugned and irregular proclamation. He states that he has filed for stay of execution of the judgement and a main appeal against the whole decision of the trial court and that he has an arguable appeal with high chances of success.

4. He has argued that the application has been brought without undue delay and that the Respondents will not suffer any prejudice.

5. The Application is opposed. The Respondents filed a Replying Affidavit dated March 13, 2022 sworn by Douglas Okeyo Olouch, the 2nd Respondent. It is his case that that prayers 1 and 2 of the instant application are spent whilst prayers 3 and 4 have nothing to do with them as they are not party to the execution process; that the only prayers that relate to them are prayers 5 and 6.

6. He deposed that they were present during the proclamation and that the same was not forceful. He argued that the applicant has not demonstrated what irreparable loss he would suffer; that the application for stay is subjudice as there is a similar application pending before the court of appeal and therefore this court lacks jurisdiction to determine this application. It is his contention that this court is functus officio and cannot consider its judgment again save for an application for review of which there is none. He prayed that in the event that this court does grant stay, the Applicant be ordered to provide security in the amount of Kshs. 1,110,609, this being the taxed amount.

7. The 5th Respondent through its Replying Affidavit dated March 30, 2022 sworn by Timothy Otieno Awuor, stated that on March 23, 2022 he received warrants of attachment and sale of property from the High Court Kajiado. That the 2nd Respondent showed him the last known abode of the judgement-debtor. He stated that he took record of the items in the house and the attachables that he had seen and that he acted professionally. He further stated that the judgement-debtor is committing perjury and misleading the court by his malicious allegations.

Submissions 8. The matter was canvassed by way of oral submissions through virtual proceedings on July 7, 2022. The Applicant, through his counsel, argued that the appeal is arguable and that if stay is not granted the appeal will be rendered nugatory. It was argued that they sought stay to enable the determination of the application for review and have the appeal heard without fear of execution.

9. The 1st and 2nd Respondents argued that the Applicant has filed a similar application in the Court of Appeal and therefore this application is subjudice. They argued that judgment was delivered on April 9, 2021 and the application was filed one year later and therefore that there is an unexplained inordinate delay. They argued that the applicant asked the court to certify the matter urgent which prayer was denied. It is their argument that the judgment is a negative one and therefore this court therefore cannot grant stay.

10. The 3rd, 4th and 5th Respondents argued that the Applicant wants to delay the course of judgment and fair timely determination of the matter. They argued that some of the prayers raised cannot be granted by this court. It is their submissions that the matter is subjudice as the application is similar to the application before the Court of Appeal.

11. They argued further that orders of stay were denied by the court of appeal and that the Applicant is forum shopping and that the application is an attempt to curtail the 3rd and 4th Respondents from fair hearing and from enjoying the fruits of their judgement.

Determination 12. From the outset and before considering the merits and demerits of this application, I wish to state that I have noted the Notice of Motion dated February 2, 2022 in Civil Application No. E31 of 2022 at the Court of Appeal at Nairobi. Prayer number 5 of that Notice of Motion is word for word prayer number 5 in this application under consideration. It is obvious that the Notice of Motion before the Court of Appeal was filed earlier than this application. The Court of Appeal did not certify that application as urgent as communicated to the parties through the email from the Registrar of the Court of Appeal dated February 7, 2022.

13. I have noted the arguments by the Respondents that this Application is subjudice as it is similar to the one filed in the Court of appeal and therefore this court lacks jurisdiction to deal with the matter. Sections 6 and 7 of the Civil Procedure Act prohibits courts from hearing a matter that is res judiciata as follows:“No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed…..No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”

14. In Dr. Kiama Wangai v John Mugambi& Republic, [2012] eKLR the court dealt with a similar issue as provided for in Section 6 of the Civil Procedure Act as follows:“A court shall not proceed with any proceedings in which the matter in issue is also directly and substantially in issue in previously instituted proceedings between the same parties where such proceedings are pending before the same or any other Court having jurisdiction to grant the same relief claimed.”

15. I have considered this matter. I agree with the Respondents that the Applicant seems to be forum shopping. He filed this application after the Court of Appeal declined to certify as urgent his application before that court. For this reason and given that the Court of Appeal is yet to pronounce itself on that application, I will not determine prayer number 5 for the reason that the same prayer is before the Court of Appeal for determination.

16. Prayers 3 and 4 are related. Prayer 3 was granted in the interim pending the hearing and determination of this application.

17. The Applicant claims that the Proclamation Notice dated March 24, 2022 is illegal, unlawful, irregular, null and void ab initio for reasons that the Respondents have not been served with the certificate of taxation or apply for warrants of attachment prior to the irregular proclamation; that the Notice of Proclamation of movable property dated March 24, 2022 is not supported by any warrants of attachment issued by the court.

18. The 5th Respondent, through the Replying Affidavit of Timothy Otieno Awuor, deposed that acting under instructions, he received warrants of attachment and sale of property from the High Court Kajiado on March 23, 2022 and proceeded to the Applicant’s home where he proclaimed attachable goods. He has attached communication from counsel requesting for Certificate of costs and warrants of attachment. The attached documents show that the application for execution was filed online and payment done.

19. I have seen a copy of the application for execution and a copy of warrants of attachment dated March 22, 2022 attached to the replying affidavit of Timothy Otieno Awuor. The Applicant did not address the issue of these attached documents. Instead he seems to be saying that the proclamation is illegal for failure to follow the law.

20. The Applicant seeks under prayer 3 an order of temporary injunction restraining the Defendants/Respondents by themselves, their employees, agents, servants and/or any person acting under their instructions restraining them from trespassing, entering into the Plaintiffs/Applicants premises, seizing and taking away the proclaimed properties of the Plaintiff/Applicant pending hearing and determination of this Application.

21. He seeks under prayer 4 an order of this court to set aside the illegal and irregular process of execution and in particular the impugned proclamation of attachment of the Plaintiffs/Applicants movable properties Notice dated March 24, 2022.

22. I have considered the arguments before the court. I am not satisfied that the Application has persuaded this court that the Proclamation was illegal. I have no evidence to that effect other than stating that the proclamation was illegal and irregular for failure to serve the certificate of taxation or apply for warrants of attachment prior to the irregular proclamation.

23. It is my finding that the Applicant has failed to provide evidence to support the claim that the proclamation was illegal. This application must fail and is hereby dismissed with costs to the Respondents.

24. Orders shall issue accordingly.

DATED, SIGNED AND DELIVERED THIS 4THDAY OF OCTOBER 2022. S. N. MUTUKUJUDGE