[2022] KEHC 11692 (KLR)

Automobile Warehouse (NKR) Ltd v Nyaundi (Civil Appeal 200 of 2019) [2022] KEHC 11692 (KLR) (5 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11692 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Appeal 200 of 2019

TM Matheka, J

May 5, 2022

Between

Automobile Warehouse (NKR) Ltd

Appellant

and

Osumo Abima Nyaundi

Respondent

(Being an appeal from the Judgment and Decree of the Principal Magistrate’s (Hon. F.K. Munyi) in Nakuru CMCC No. 329 of 2010 delivered on 18th November, 2019)

Ruling

(On the preliminary objection by the Respondent/Applicant) 1. Osumo Abima Nyaundi, the Respondent/Applicant sued the Appellant in the lower court by Plaint dated 19th November, 2013. His claim against the appellant was that, on or between 28th May 1999 and 13th July 1999, he purchased the Appellant’s second-hand Motor Vehicle Registration number KAA 057J, a Mitsubishi Canter, Model FE 301 (the Motor Vehicle) at an agreed price of Kshs. 813,500/=. That the motor vehicle was handed over to him on or about 13th July,1999 upon payment of Kshs. 363,500/= leaving a balance of Kshs. 458,000/= payable by twelve (12) equal monthly installments of Kshs. 46,500/= inclusive of an element of commitment fee of Kshs. 5,000/= and legal fees of Kshs.3,000/=.

2. That by 27th December 2000 he had duly paid the full purchase price together with the interest on arrears totaling to Kshs.1, 055,269/= and in view of the above the Appellant was to grant him quiet possession and enjoyment of the said motor vehicle and to transfer the same to him .

3. That the Appellant breached quiet possession by unlawfully repossessing the Motor Vehicle in August 2000 and refusing to deliver unto him the Motor Vehicle’s Log Book together with a signed instrument of transfer in his favor. He sought Judgment against the Appellant for:-a.A declaration that the Respondent was the lawful owner of the Motor Vehicle KAA 057 J;b.An Order that the Appellant do deliver unto the Respondent the said Motor Vehicle’s Log Book together with a signed instrument of transfer in favour of the said Respondent according to Law;c.General Damages;d.Costs;e.Any other or further relief which this court may deem just;f.An order that the appellant do refund the respondent the whole purchase price amount and other amounts that the respondent paid in respect of the sale plus interest for the period that the Appellant had continuously remained in breach.

4. The appellant did not file a defence within the requisite time and the matter proceeded by way of formal proof. On November 18, 2019 judgment was entered in his favour in the sum of Ksh.3 million plus costs and interests at court rates.

5. The appellant, aggrieved by the trial court’s decision filed this appeal on 27th November 2019 on the following grounds:a.The Learned Trial Magistrate erred in law and fact in making a declaration that the respondent herein was the lawful owner of Motor Vehicle Registration number KAA 057 J with no evidence to support the same on record.b.That the honorable trial magistrate erred in law in finding that the respondent had completed payment of the full purchase price which was contrary to the evidence on record.c.That the learned magistrate erred in law and in fact in failing to appreciate documentary evidence (receipts number 62 and 63 ) and find that the respondent was in arrears and therefore not entitled to ownership of the subject motor vehicle.d.That the honorable magistrate erred in law and fact in holding that the appellant had repossessed subject motor vehicle from the respondent with no evidence in support on record and where the respondent pleadings suggested the contrary.e.That the honorable magistrate erred in law and fact in finding that the suit motor vehicle has been in the possession of the appellant herein for more than 15 years with no evidence in support on record and the respondent’s pleadings.f.That the learned magistrate erred in law in finding the appellant herein liable to pay the respondent general damages from alleged breach of contract against the law and principle.g.That the learned magistrate erred in law and in fact in awarding the respondent herein with general damages of Ksh. 3 million with no pleadings and or evidence of any kind of loss being tendered on record.h.That the learned magistrate erred in failing to appreciate the appellant’s submissions on record.i.That the learned magistrate erred in law and in fact in needlessly denying the appellant the chance to adduce evidence that would have enabled the court to appreciate the entire scenario in the matter therefore her findings have no objectivity and are largely speculative and not founded on solid evidence of fact at all.j.That the learned magistrate erred in law in abdicating her mandate as an impartial and passive arbiter and became an active participant, filing the evidential gap for the plaintiff.

6. In response to the appeal the respondent/applicant filed a notice of preliminary objection dated August 26, 2021 on the grounds that:-i.The honorable court lacks jurisdiction to hear and determine the matter by dint of order 10 rule 3 of the Civil Procedure Rules since the appellant did not file a defence before the trial court.ii.The honourable court lacks jurisdiction to hear and determine the appeal as it is defective.iii.The honourable court lacks jurisdiction to entertain the appeal which is frivolous, vexatious with no merit and which is an abuse of the court process pursuant to article 50 (2) (J) ,159 (2) (b) of the constitution and order 2 rule 15 of the Civil Procedure Rules.iv.The honorable court lacks jurisdiction to entertain the appeal which has no reasons for delay.

7. On November 25, 2021, the parties through their respective advocates took directions to canvass the preliminary objections by way of written submissions.

8. The respondent/applicant submitted that the appeal is defective as there is no defence on record, hence the court had no jurisdiction to hear and determine the appeal.

9. That the appeal is time barred as it has never been listed for hearing within one year in accordance with rule 42 rule 35(2) of theCivil Procedure Rules and that failure to do so offends articles 50(1), 47(1),48 and 159(2)(b) of the Constitution.

10. He contended there are no reasons advanced by the Appellant on why it filed this appeal outside the prescribed time. He stated that this appeal is frivolous and urged the court to dismiss it with costs.

11. The appellants framed four issues for determination namely;i.Whether or not this Honourable Court has jurisdiction to hear and determine the instant appeal.ii.Whether or not the appellant has locus standi to institute the instant appeal.iii.Whether or not the instant appeal is meritoriousiv.Whether or not the preliminary objection is meritorious

12. With regard to the first issue, the appellant argued that jurisdiction is everything and before a court proceeds to hear a matter it is important that it certifies itself as having jurisdiction without which the court ought not to proceed an inch. For this proposition the appellant placed reliance on the cases of Owners Of The Motor Vessel Lillian S’ Vs Caltex Oil (Kenya) Limited(1989) KLR &. Samuel Kamau Macharia vs. KCB &others [2012] eKLR.

13. The appellant argued that this court is clothed with jurisdiction under articles 165(1) and 165(3) (e) of the Constitution and under section 65 & 79 of the Civil Procedure Act to determine appeals which lie to it from the subordinate courts.

14. On the second issue, the appellant referred this court to the decision in Governmentof Malaysia vs Lim Kit Siang & United Engineers (M) Bhd Vs. Lim Kit Siang[1988]2 MLJ 43 where the court stated that;“…every legal system has a built in mechanism to protect its judicial process from abusive by busy bodies, cranks and other mischief by insisting that a plaintiff should have a special interest in the proceedings he institutes.,”

15. In furtherance to the above the appellant cited the provisions of order 1 rule 3 of the Civil Procedure Rules 2010, article 50(1), and article 48 and submitted that having been dissatisfied by the decision of the lower court it preferred the instant appeal in a bid to have its dispute heard and determined by this honourable court.

16. On the third issue, it was the appellant submission that section 79b of the Civil Procedure Act grants this court discretion to peruse the appeal and determine whether or not to reject it summarily. That the fact this court admitted the appeal is a clear indication that the memorandum of appeal raises triable issues.

17. With regard to the contention that appeal has been filed with delay, the appellant submitted that lower court judgment was delivered on 18th November 2019 and it was granted thirty (30) days stay of execution and on 5th December 2019 it filed a Memorandum of Appeal dated 26th November 2019, that subsequently it filed an application seeking stay of execution and due to Covid 19 protocols and other factors the Ruling for their said application took longer than expected and it was finally delivered on 27th January 2021 .

18. On the last issue, the appellant submitted that the issue of Preliminary Objection was addressed in the case of Mukisa Biscuits Manufacturing Co. Ltd Vs West End Distributors Ltd (1969) EA 696.

19. The appellant argued that a preliminary objection must not be blurred by factual details. For this proposition they relied on the case of Royal Reserve Management Company Ltd Vs Kenya Power & Lightning Company Ltd[2017] eKLR which cited with approval the case of Oraro Vs Mbaja [2005] eKLR.

20. For the definition of the term abuse of court process the appellant relied on the case of Muchanga Investments Ltd vs Safaris In-Limited (Africa) Ltd & Two Others2009 KLR 229 as highlighted in the case Alice Mweru Ngai Vs Kenya Power & Lighting Co. Ltd[2015]eKLR where the court stated:-“The employment of judicial process is regarded as an abuse when a party uses the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice. It is a term generally applied to a proceeding which is wanting in bona fides and is frivolous, vexatious or oppressive. The term abuse of process has an element of malice in it.”

21. It was submitted for the appellant that it has a right of appeal, that preliminary objection has not merit and this court urged to dismiss the same.

22. From the foregoing the issue for determination is whether this court has jurisdiction to hear an determine this appeal.

Analysis & Determination 23. The definition of a Preliminary Objection was given in the case of Mukisa Biscuits Manufacturing Co. Ltd vs West End Distributors Ltd[1969] E.A. 696, as follows: -“A preliminary objection is in the nature of what used to be a demurrer.It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”

24. Where a Preliminary Objection has been raised the court is obliged to determine the same at the first instance. In this case a question of jurisdiction has been raised. It is trite that jurisdiction is everything and when the question arises the Court seized of the matter must as a matter of prudence enquire into it before proceeding further.

25. The ‘locus classicus’ on jurisdiction is the celebrated case of; Owners of the Motor Vessel “Lillian S” vs Caltex Oil (Kenya) Ltd [1989] eKLR where Nyarangi J.A. held:“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything, without it, a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds that it is without jurisdiction.”

26. In Samuel Kamau Macharia & Another vs Kenya Commercial Bank Limited & 2 Others [2012] eKLR, the Supreme Court made the point that:“A court's jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred by law….”

27. Article 165 of the Constitution establishes the High Court. Article 165(3) (e) confers it with jurisdiction to hear appeals from subordinate courts. The article provides that the High Court shall have any other jurisdiction, original or appellate, conferred on it by legislation.

28. Section 65 of the Civil Procedure Act Provides for appeals and states:(1)Except where otherwise expressly provided by this Act, and subject to such provision as to the furnishing of security as may be prescribed, an appeal shall lie to the High Court—(a)…(b)from any original decree or part of a decree of a subordinate court, on a question of law or fact;(c)from a decree or part of a decree of a Kadhi’s Court, and on such an appeal the Chief Kadhi or two other Kadhis shall sit as assessor or assessors.”

29. This court is clothed with appellate jurisdiction by both the Constitution and statute. The appellant being aggrieved by the decision of the trial court has a right of appeal and was within its right to prefer an appeal before this court.

30. The respondent/applicant also submitted that where an appeal is frivolous such as this one, the court lacks the jurisdiction to hear and determine the same. Clearly whether or not an appeal is frivolous is an issue to be determined at the hearing of the appeal and it cannot be tied to jurisdiction. The court has to re-examine the facts of the case as presented before the trial court. That in effect removes that issue from being a pure point of law. See the case of Oraro v Mbaja [2005] 1 KLR 141 Ojwang J, (as he was then) expressed himself as follows: -“…. The principle is abundantly clear. A “preliminary objection” correctly understood, is now well defined as, and declared to be, a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion, which claims to be a preliminary objection, yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed. Where a court needs to investigate facts, a matter cannot be raised as a preliminary point…Anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence...”

31. The respondent/applicant submitted further that this appeal is defective as there was no defence filed before the lower court. It is indeed true that this matter proceeded by way of formal proof before the lower court. Again, this submission is misguided and must be deemed as such.

32. On the issue of the appeal being filed out of time section 79 G of the Civil Procedure Act provides that:“Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order:Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.”

33. The judgment of the lower court was delivered on November 18, 2019. The appeal therefore ought to have been filed on or before December 18, 2019. This appeal was filed on November 27, 2019 before lapse of thirty (30) days therefore the same was filed well within the time stipulated by the law.

34. The respondent/applicant also accused the appellant for not prosecuting his appeal within one year. Order 42 rule 35(2), provides that where after one year upon service of the Memorandum of Appeal, the appeal has not been set down for hearing, that the Registrar upon notice to the parties, is to list the appeal before a Judge in chambers for dismissal.

35. It’s clear therefore under order 42 rule 35(2) of the Civil Procedure Rulesthat it is only the Registrar who can list the Appeal for dismissal before a Judge before directions on the same are given. It was incumbent upon the respondent/applicant to cause the Registrar to list the appeal for dismissal as per order 42 rule 35(2) of the Civil Procedure Rules.Nothing shows that the Applicant moved the Registrar to dismiss this Appeal.

36. Having considered the rival submissions and authorities cited I find that the preliminary objection is not founded. The preliminary objection lacks merit and is dismissed with costs to the appellant.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 5TH DAY OF MAY, 2022. MUMBUA T MATHEKAJUDGEIn the presence of;CA EdnaApplicant present in personMr. Kisila for the appellant/respondent