[2004] KEHC 998 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA CIVIL APPEAL NO. 58 OF 1998

1. BORKA AHMED SALIM

2. SHALHA AHMED …………………………………… APPELLANTS

Versus

STEPHEN C. NGALA …………………………………… RESPONDENT

R U L I N G

This is an application brought under Order 44 Rule 1, Order 39 Rules 1(a) and 7 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act for the review of this court’s decree in appeal dated the 12th May 2003 so that this appeal may be reheard. The Application also seeks an order for injunction. The application for review is based on the grounds that there are errors on the face of the record in that:-

1. The suit before the subordinate court that gave rise to this appeal having been a boundary dispute in respect of properties registered under the Registered Land Act Cap 300 and the boundary having not been fixed the subordinate court had no jurisdiction to entertain the suit and this court should have so held.

2. That the summons to enter appearance having been a nullity the entire proceedings before the subordinate court was also a nullity and this court should have set them aside.

The prayer for injunction seeks an injunctive order to restrain the Respondent from further demolishing the Appellant’s structure until this application is heard and determined.

In support of the application, the Appellants swore an affidavit in which they deponed that the dispute in the subordinate court was clearly a boundary dispute and that as there was no proof that the boundary between the parties’ plots had been fixed the subordinate court had no jurisdiction to entertain the matter. The Appellants further deposed that the summons to enter appearance which required them to enter appearance within 10 days was contrary to Order 4 Rule 4 and therefore a nullity. Mr. Kimani for the Appellants submitted that the subordinate court and indeed this court should have satisfied themselves that they had jurisdiction to entertain the matter before proceeding. He said there was nothing to show that the boundary between the plots had been fixed as required by section 21(4) of the Registered Land Act. He referred me to the copy of the title which does not have an entry to the effect that the boundary has been fixed by the Land Registrar.

On the summons to enter appearance he submitted that the same having required the Appellants to enter appearance within ten days fell foul of Order 4 Rule 3(4) of the Civil Procedure Rules. It was therefore a nullity and everything following thereon was a nullity. Mr. Asige for the Respondent submitted that this application is incompetent and should be struck out. He argued that the Appellants having filed a notice of appeal and even obtained an order of stay from the Court of Appeal this court has no jurisdiction to entertain an application for review. He said an appeal in the Court of Appeal is instituted by filing a Notice of Appeal under the Court of Appeal Rules. He cited the Court of Appeal decision in Narodhco Kenya Ltd. Vs Loria Michele, Civil Appeal No. 140 of 1997 and Order 41 Rule 4 in support of that submission. He further submitted that even the affidavit in support of this application is itself defective and should be struck and if it is the application should also be struck out. To him the word “we” used in the affidavit is not in the first person and that offends Order 18 Rule 5 of the Civil Procedure Rules.

Mr. Asige saw the argument on jurisdiction as a red herring and totally unmeritorious. He said the suit in the subordinate was on trespass and not a boundary dispute. At any rate, he said, the boundary between the parties’ plots is a fixed boundary and referred me to some survey plan produced in the proceedings. Regarding the summons to enter appearance Mr. Asige submitted that the Appellants having entered appearance they are estopped from raising the issue of the summon after six years. From these submissions four main issues fall for my decision. First, whether or not the Appellants have filed an appeal denying this court jurisdiction to entertain an application for review. Secondly, whether or not the affidavit in support of the application is defective. Thirdly, whether or not the summons to enter appearance was a nullity and if so whether or not the subsequent proceedings are a nullity. Lastly, whether or not the subordinate court had jurisdiction to entertain the suit.

Order 44 Rule 1(1) which provides for review is very clear. The relevant part is in the following terms: “1(1) Any person considering himself aggrieved – (a) by a decree or order from which an appeal is allowed but from which no appeal has been preferred; or (b) ………………. and who … on account of some mistake or error apparent on the face of the record, … desires to obtain a review of the decree or order, may apply for a review of the judgment to the court which passed the decree or made the order without unreasonable delay.” By filing a notice of appeal and obtaining an order for stay of execution from the Court of Appeal have the Appellants “preferred an appeal” and therefore lost the right to apply for review? Mr. Asige says they have. Mr. Kimani says they haven’t. The question as to when an appeal is filed in the Court of Appeal was conclusively decided by the Court of Appeal for Eastern Africa way back in 1954 in Motel Schweitzer Vs Thomas Edward Cunningham & Another (1955) 22 EACA 254 in which the court held that an appeal is not instituted in the Court of Appeal until the record of appeal is lodged in its Registry, fees are paid and security lodged as provided by rule 58 of the Court of Appeal Rules 1954. This decision was followed by our Court of Appeal in Yanl Harvanto Vs E.D. & F Mann (Sugar) Ltd., Civil Appeal No. 122 of 1992 in which the Court (Gicheru, Kwach & Cockar, JJA) stated:-

“The only issue before the judge on this particular point was whether the filing of a notice of appeal constituted a preferment of appeal or not, because if it did, then clearly he had no jurisdiction. The learned judge was of the view that the only purpose that rule 74(1) of the Court of Appeal Rules served was to enable a party to manifest its desire to appeal. We entirely agree with him. A notice of appeal, apart from manifesting a desire to appeal, appears to have a twofold purpose. One of the two purposes is apparent from the rules that follow upto and including rule 79. The other purpose and which in our view is the real purpose for the provision of the facility of filing a notice of appeal, is to enable the High Court to entertain an application for stay of execution before the appeal is filed under rule 81 in this court.”

So then the filing of a notice of appeal, which in any case is filed in the High Court in the same case file from which an appeal is to be preferred, is not the preferment of an appeal to the Court of Appeal. An appeal is instituted in the Court of Appeal when a memorandum of appeal is drawn and incorporated in the record of appeal and duly filed in the Court of Appeal registry or sub-registry as the case may be. In this case only a notice of appeal has been filed. In the circumstances I agree with Mr. Kimani that the decision inNorodhco Kenya Limited (supra) which did not refer to the above earlier decisions is per incuriam and I refuse to follow it. Consequently I hold that the Appellants in this case have not preferred an appeal to the Court of Appeal against the decree of this court which they seek to review and this application is not incompetent. This court has jurisdiction to entertain it. The second issue raised by Mr. Asige is that the affidavit in support of the application is defective in that the word “we” is not in the first person. My answer to that is simple. He is wrong. The affidavit having been sworn jointly by the Appellants the word “we” is in the first person.

The third issue relates to the validity of the summons to enter appearance. I have perused a copy of the summons. It reads:

“YOU ARE HEREBY REQUIRED within 10 (TEN) days from the date of service hereof to enter appearance in the said suit.

” That summons clearly did not give the Appellant the time of not less than 10 days required by law within which to enter appearance. Order 4 Rule 3(4) of the Civil Procedure Rules provides that:- “The time for appearance shall be fixed with reference to the place of residence of the dependant so as to allow him sufficient time to appear. Provided [that] the time for appearance shall not be less than 10 days.”

This provision is clearly mandatory. It was so held by the Court of Appeal in Ceneast Airlines Ltd. Vs Kenya Shell Ltd, Civil Appeal No. 174 of 1999. A summons which does not comply with this mandatory provision and gives the defendant less than the required ten days is invalid and of no effect. It is a nullity.

What then happens in a case in which the defendant purporting to comply with such summons has entered appearance, filed a defence and the case has been heard and has even gone to appeal like in this matter? In my view all proceedings and actions based on such summons are also a nullity. They have no ground to stand on. Referring to an order that was a nullity inMacfoy Vs United Africa Co. Ltd. [1961] 2 ALL ER 1169 Lord Denning had this to say:-

“If an act is void, then it is in law a nullity. It is not only bad, but incurably bad …, and every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.” (at P.117 par.I)

InEquatorial Commercial Bank Vs Mohansons (K) Ltd. Mombasa HCCC No. 524 of 1998 in which the defendant entered appearance, filed a defence, signed a consent judgment and even attempted to liquidate the decretal, Mwera J held that all those proceedings lacked validity and struck out the memorandum of appearance and defence and set aside the consent judgment. I concur with that decision. Having so held I do not need to decide on the prayer for injunction. Consequently I allow this application and order that the decree in appeal issued by this court on the 12th May 2003 is hereby reviewed and set aside with costs to the Appellants.

DATED and delivered this 16th day of November, 2004.

D.K. Maraga

Ag.JUDGE