[2018] KEHC 6658 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISUMU

CIVIL APPEAL NO.25 OF 2017

CO-OPERATIVE BANK (K) LIMITED.........APPELLANT

VERSUS

DAVID OSCAR OWAKO................................RESPONDENT

(Being an Appeal from the Ruling and orderinKisumu CMCC No. 254 of 2010

delivered by Hon. W.K.Onkunya (SRM) on 15th February, 2017)

JUDGMENT

Background

1. The background of Kisumu CMCC No. 254 of 2010from which this appeal arisesdemonstrates that respondent’s claim was determined by way of an exparte garnishee order absolute against the appellant that was not a party to the suit.By a plaint filed 1st July, 2010,DAVID OSCAR OWAKO(hereinafter referred to asrespondent) suedChemelil Sugar Company Ltd &6 Others (hereinafter referred to as defendants)in the lower court, claiming payment for all sugarcane deliveries from Plot No. Kotnelel LR 10817/3, between the months of February 2010 to the date of filing the suit.

2. Together with the plaint, respondent filed a notice of motion seeking orders thatdefendants be directed to pay him all sugarcane deliveries from Plot No. Kotnelel LR 10817/3.

3. On the same date that the notice of motion was filed, the court made an exparte order directing defendants to pay to the respondent all proceeds for sugarcane deliveries from Plot No. Kotnelel LR 10817/3 between the months of February 2010 to June 2010

4. On 13th July, 2010, the exparte orders issued in 1st July, 2010 were extended.

5. By another notice of motion filed on 23rd July, 2010, respondent sought orders among them that Chemelil Sugar Company Limited, the 1st defendant, be ordered to furnish security for Kshs. 1,950,380/-; for a preliminary decree for Kshs. 1,950,380/ and a garnishee order against the appellant attaching a sum of Kshs. 1,950,380/- in 1st defendant’s account. All the orders sought in the application were granted on 23rd July, 2010 and the notice of motion was fixed for hearing interpartes on 2nd August, 2010

6. On 27th July, 2010, the respondent and defendants by consent agreed before Hon. Aroni J, that proceedings in Kisumu CMCC No. 254 of 2010 be stayed pending the hearing and determination of Kisumu High Court Civil Case No. 38 of 2009.

7. On 9th August, 2010, respondent filed yet another notice of motion under the Vacation Rules seeking a stay of the consent orders issued on 27th July, 2010. The order was granted by Muchemi J and the application was fixed for interpartes hearing on 30th August, 2010.

8. On 19th August, 2010, the lower court issued a garnishee order absolute requiring the appellant to pay to the respondent Kshs. 1,950,380/ from 1st defendant’s account.

9. In compliance with the Garnishee Oder Absolute, the appellant on 24th August, 2010 issued 2 cheques for the total sum of Kshs. 1,950,380/ in favor of the respondent.

10. By a notice of motion dated on 26th August, 2010, appellant sought orders to set aside the garnishee order issued on 19th August, 2010. The order was granted exparte and the notice of motion was fixed for interpartes hearing on 2nd September, 2010.

11. On 25th August, 2010, Lenaola J (as he then was) granted orders sought in an application dated 24. 8.10 in Kisumu High Court Civil Case No. 38 of 2009 staying the garnishee order absolute that directed the appellant to pay to the respondent Kshs. 1,950,380/ from 1st defendant’s account that was issued on 19th August, 2010.

12. On 30th August, 2010, Karanja J, extended the orders issued on 25th August, 2010, by Lenaola J (as he then was) and fixed the matter for mention on 30th August, 2010.

13. On 8th September, 2010, the court in Kisumu CMCC No. 254 of 2010 set aside the orders issued on 26th August, 2010, setting aside the stay of execution of the garnishee orders issued on 19th August, 2010.

14. By a notice of motion filed on 13th October, 2010, respondent sought an order to restrain 1st defendant from making payments to the defendants for all sugarcane deliveries from Plot No. Kotnelel LR 10817/3. The order was granted exparte in the first instance on the same date.

15. By an order issued on 19th October, 2010, the court in Kisumu CMCC No. 254 of 2010 set aside the garnishee order absolute issued on 19th August, 2010, requiring the appellant to pay to the respondent Kshs. 1,950,380/ from 1st defendant’s account.

16. On 20th September, 2016, the court in Kisumu CMCC No. 254 of 2010allowed a notice of motion filed on the same date and directed appellant to unconditionally release 2 cheques for the total sum of Kshs. 1,950,380/ to the respondent. The application dated 20th September, 2016, was fixed for interpartes hearing on 7th October, 2016

17. By yet another notice of motion dated 26th September, 2016, respondent filed an application seeking an order directed at the appellant to re-issue 2 cheques for the total sum of Kshs. 1,950,380/- to the respondent.

18. By a discharge and indemnity dated 27th September, 2016, appellant in compliance with the order issued on 26th September, 2016, paid to the respondent in cash, the sum of Kshs. 1,950,380/-.

19. On the strength of the payment, the respondent filed a notice of motion dated 4th October, 2016 seeking an order that the appellant had complied with the order for payment of Kshs. 1,950,380/-.

20. The respondent’s notices of motion dated 20th September, 2016, 26th September, 2016 and 4th October, 2016 were heard together on 4th November, 2016.

21. In a ruling delivered on 15th February, 2017, the court held that the applications had been spent since appellant had already paid the total sum ofKshs. 1,950,380/- to the respondent.

The Appeal

22. The Appellant being dissatisfied with the lower court’s decision preferred this appeal and on 21. 11. 17 filed the Memorandum of Appeal dated 14. 3.17 which sets out 8 grounds of appeal which I have summarized into 4 grounds that:-

1. The learned trial magistrate erred in law, fact and principle in failing to adequately consider all the material evidence on record in arriving at the ruling delivered on 15 February, 2017 thereby occasioning a miscarriage of justice

2. The learned trial magistrate erred in law, fact and principle in granting exparte substantive orders against the appellant in the notice of motion dated 20th September, 2016 and 26th September, 2016 and after hearing the applications interpartes ruled that the applications had been overtaken by events

3. The learned trial magistrate erred in law, fact and principle in failing to find that the appellant’s obligation as garnishee ceased when the Garnishee Order absolute was set aside on 19th October, 2010

4. The learned trial magistrate erred in law and in fact in finding that since appellant had paid the respondent Kshs. 1,950,380/-,then appellant had rightly settled the debt

SUBMISSIONS BY THE PARTIES

23. This appeal was argued by way of oral submissions on 23. 1.18, 13. 2.18 and 9. 4.18 mainly because the respondent who was unrepresented sought adjournments to secure various documents in support of his case.

Appellant’s submissions

24. Appellant holds the view that it did not owe the respondent any money and that its obligation to pay ceased when the Garnishee Order absolute was set aside on 19th October, 2010. Appellant placed reliance on Article 165 of the Constitution, Section 68 of the Civil Procedure Act and Section 5 of the High Court (Organization and Administration) Act and prayed for a refund ofKshs. 1,950,380/- paid to the respondent.

Respondent’s submissions

25. Respondent on the other hand holds the view that the sum of Kshs. 1,950,380/- was lawfully paid to him and that he under no obligation to refund the same.

Analysis and Determination

26. This being the first appeal, it is my duty under section 78 of the Civil Procedure Act to re-evaluate the evidence tendered before the trial court and come to my own independent conclusion taking into account the fact that I did not have the advantage of seeing and hearing the witnesses as they testified. This principle of law was well settled in the case of Selle v Associated Motor Boat Co. Ltd (1968) EA 123.

27. I have considered the evidence on record. Article 165 of the Constitution provides for the establishment of the High Court and its jurisdiction. Section 5 of the High Court (Organization and Administration) Act reiterates the jurisdiction of the High Court under by Article165(3)and (6) ofthe Constitution. Section 68 of the Civil Procedure Act precluded any partyaggrievedbyapreliminarydecree and who does notappealfromthatdecreefrom disputing its correctness in any appeal which may be preferred from the final decree.

28. The notice of motion dated 20th September, 2016 sought for an order directing appellant to unconditionally release 2 cheques for the total sum of Kshs. 1,950,380/ to the respondent. The one dated 26th September, 2016 sought an order directed at the appellant to re-issue 2 cheques for the total sum of Kshs. 1,950,380/- to the respondent while the one dated4th October, 2016 confirmed that appellant had complied with the orders issued on 20th September, 2016and paid the total sum of Kshs. 1,950,380/- to the respondent on 26th September, 2016. .

29. It is not disputed that by an order issued on 19th October, 2010, the Garnishee Order absolute was set aside. The said order was issued long after appellant had paid the sum ordered in the garnishee order absolute. The order was in my considered view issued in vain since there was no order to be set aside.

30. It is not disputed that as at 4th November, 2016 when the respondent’snotices of motion dated 20th September, 2016, 26th September, 2016and 4th October, 2016 were heard, appellant had already paid to the respondent the total sum of Kshs. 1,950,380/-.

31. That being the position that was pertaining as at 15th February, 2017 when the ruling the subject of this appeal was delivered, , there was absolutelynothing left for the learned trial magistrate to determine in so far as the three applications were concerned.

32. There was no application before the learned trial magistrate for the refund of the sum paid to the respondent and the court would not have been expected to determine a matter that was not before it.

Disposition

33. In view of the foregoing finding, this court holds that the decision by the learned trial magistrate was well considered and declines an invitation tointerfere with it.As much as appellant’s right to pursue the respondent for a refund may still be open, the same cannot be pursued by way of this appeal. Consequently, this appeal is disallowed with no order as to costs.

DATED, DELIVERED AND SIGNED THIS10thDAY OFMay2018

T. W. CHERERE

JUDGE

Read in open court in the presence of-

Court Assistant - Felix

Appellant - Ms. Ongira holding brief for Mr. Kouko

Respondent - N/A