[2023] KEELRC 3476 (KLR)

Country Farms Limited v Dieto & 2 others (Miscellaneous Case E011 of 2023) [2023] KEELRC 3476 (KLR) (11 December 2023) (Ruling)

Neutral citation: [2023] KEELRC 3476 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Bungoma

Miscellaneous Case E011 of 2023

JW Keli, J

December 11, 2023

Between

Country Farms Limited

Applicant

and

Simon Ochieng Dieto

1st Respondent

Surjit Singh

2nd Respondent

Malkiat Singh

3rd Respondent

(On the Notice of Motion Application dated 25TH October 2023 by the Applicant brought under Order 43 Rule 1(2), Section 75 of the Civil Procedure Act, Section 3A of the Civil Procedure Act)

Ruling

1. The ruling is on application by way of Notice of Motion by the Applicant dated 14th November 2023 seeking the orders:-a.Spentb.That leave be granted to the applicant to file an Appeal in this matter.c.That there be a stay of execution of the Decree pending the hearing and determination of the application.d.The costs of this application be granted.

2. The Notice of Motion was premised on the grounds set out in the body of the application and on the affidavit sworn in support of the application by the applicant:-i.That the applicant seeks leave to file an Appeal against a ruling rendered by the Hon. Olando as his property is at risk of being auctioned yet the same does not belong to the judgement debtor.ii.That the applicant was an objector and the legal owner of the attached chattels and wishes to protect his right and is not liable to satisfy the decree herein.iii.That the applicant was not a party to the suit where the defendants were held liable and ought not to be punished for what the court considered representation by the advocate.iv.That the attached properties are legally owned by the applicant and procedural technicalities ought not be used to deny the applicant his right to protect his possessions.v.There is a distinct difference between a legal person and legal entity and hence property of a company cannot be attached to answer a debt of an individual.vi.That if leave is not granted to file an Appeal, the said appeal will be rendered nugatory if stay is not allowed.

3. The Application was opposed by the 1st Respondent through his Replying Affidavit sworn on 27th November 2023 and filed on 28th November 2023 on the grounds that:-i.The applicants’ application is frivolous and an abuse of the Court process and ought to be dismissed.ii.That the court lacks jurisdiction to grant leave to appeal under Section 75 of the Civil Procedure Act as read with Order 43 of the Civil Procedure (Amendment)Rules 2020. iii.That the applicant’s decision to appeal the decision delivered on 11. 10. 2023 and the time for lodging an appeal lapsed on 11. 11. 2023 in line with Section 79 G of the Civil Procedure Act and the Respondent shall raise a preliminary objection.iv.That there is a conflict of interest as the advocate for the applicant is the advocate for the 2nd and 3rd Respondents who are the Judgement debtors/Defendant in Bungoma CMCC No. 194 of 2018(SO 1).v.That the applicant on delivery of judgment in Bungoma CMCC No. 194 of 2018 lodged an appeal to the Bungoma High Court vide Civil Appeal No.123 of 2023 challenging the Honourable magistrate’s decision(SO II) and later withdrew the appeal and was ordered to pay him costs(SO IIIa & b- Bill of costs and Notice by Deputy Registrar).vi.That the instant application offends Order 25 Rule 1 and 4 of the Civil Procedure (Amendment ) Rules 2020 and ought to be stayed until payment of his costs to the withdrawn appeal.vii.That the proposed memorandum of appeal is a sham as it was filed in disregard to the provisions of Section 22 Rule 51 of the Civil Procedure (Amendment)Rules 2020. viii.That since the 2nd and 3rd Respondents’ and the applicant’s counsel are the same, the present application is a scheme between the 2nd and 3rd Respondents and the applicant to derail his enjoyment of the fruits of his just decree considering that the 2nd and 3rd Respondents also have an appeal pending in Bungoma High Court Civil Appeal No. 1 of 2021 filed by the same counsel(SO IV).ix.That the attached properties belong to the 2nd and 3rd Respondents the judgement Debtors in Bungoma CMCC No. 194 of 2018; facts within his knowledge having worked for them for the past 15 years as their mechanic and that he was the one who pointed them out to auctioneers at the time of attachment.x.That the applicant has failed to establish a primae facie case to warrant the grant of orders sought.

Determination Issues for determination. 4. The court having perused the application and the Reply by the 1st Respondent was of the considered opinion that the issues placed before the court by the parties for determination of the application are:-a.Whether the court has jurisdiction to grant leave to appeal;b.Whether the Applicant has met the threshold for grant of stay of execution.

Issue a). Whether the court has jurisdiction to grant leave to appeal; 5. The Applicant’s Application before this court seeks leave to file an appeal against the decision of Hon. T.M. Olando as the Applicant’s property is in danger of being sold and yet the same does not belong to the judgement debtor-2nd and 3rd Respondent debtors and orders for a stay of execution be confirmed.

6. The 1st Respondent- the Judgement Creditor opposed the application arguing that the court lacks jurisdiction to grant leave as leave ought to have been obtained from the lower court and that the time for filing the appeal has lapsed. They relied on the decisions in Mbaraka Suleiman Mbwana v Nasoro Bakari Nguta & another (2021)eKLR, Serephen Nyasani Menge vs Rispah Onsasa(2018)eKLR and Spire Bank Limited V Emerging Investments Limited(2020)eKLR.

7. The 1st respondent argues that the objector-Applicant’s counsel, being the same counsel for the judgement debtor, then there is a conflict of interest and an opportunity of collusion to defeat justice and an abuse of the court process.

8. The Applicant responded that the court may under Section 75(i) of the Civil Procedure Act grant leave and argued that the right to appeal is automatic and that the instant application was filed on 26th October 2023 within 14 days after the ruling by Hon. T.M. Olando. The applicant argued that there is no conflict in acting for both the objector and judgement debtor which ground was the basis for the lower court’s decision.

Analysis and findings 9. On examining the ruling made by the trial court. Hon T.M Olando. The application dismissed related to an application brought under Order 22 Rule 51 (1) of the Civil Procedure Rules which is for the institution of objection proceedings by any person claiming to be entitled to or to have a legal or equitable interest in the whole of or part of any property attached in execution of a decree.

10. The Learned magistrate held that since the objector proceedings on behalf of the objector were instituted by the advocate for the 2nd and 3rd Respondents, who were the Judgement debtors in the suit, the advocate could not respond to the objection proceedings on behalf of the Judgement Debtors also in the same suit and the same was collusion to defile justice by denying the plaintiff the fruits of his judgement and thus dismissed the objection proceedings for being frivolous, an illegality and did not consider its merits.

11. Order 43 Rule (1) of the Civil Procedure Rules sets out the orders and rules in respect of which appeals would lie as of right.

12. Under Order 43 of the Civil Procedure Rules, an appeal lies as of right from the following orders and rules under the provisions of section 75 (1)(h) of the Act:……….. “ (k) Order 22, rules 25, 57, 61(3) and 73 (orders in execution).

13. Order 22 Rule 51 (1) of the Civil Procedure Rules does not fall under orders that appeals lie of right within order 22 which are rules 25, 57, 61(3), and 73.

14. It follows that the applicant was required to seek leave Under Order 43(2) where it is provided that an appeal shall lie with the leave of the court from any other order made under the Rules. This means that unless the order sought to be appealed against falls under the orders which are appealable as of right under Order 43(1) leave to appeal must be obtained before such an appeal can be preferred.

15. The procedure for obtaining leave is provided under Order 43(3) which states as follows:-“(3)An application for leave to appeal under Section 75 of the Act shall in the first instance be made to the court making the order sought to be appealed from, either orally at the time when the order is made, or within fourteen days from the date of such order.”

16. Order 43(3) (4) provides that “Save where otherwise expressly provided in this rule, “order” includes both an order granting the relief applied for and an order refusing such relief.”

17. The applicant’s prayer for relief was declined and he was mandated at first instance to make an application orally when the ruling was delivered on 11th October 2023 or within fourteen days from the said date of 11th October 2023 before the learned magistrate for leave to appeal.

18. A preliminary objection was defined in the celebrated case of Mukisa Biscuits Manufacturing Co Ltd vs West end Distribution Ltd [1969] E.A.696 where the courts defined it as; -“a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration … 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”

19. The 1st respondent herein has raised a preliminary objection on the ground that this court has no jurisdiction to entertain an application for leave to appeal as the Applicant did not seek leave in the lower court to file an appeal.

20. The applicant wishes to appeal against a decision by the lower court that dismissed the objector proceedings by finding that the application was frivolous and collusion between the Objector and the 2nd and 3rd Respondents. This falls within the ambit of Order 43(2) requiring a party to seek leave in the first instance before the court that made the order sought to be appealed from.

21. The Court of Appeal in Kakuta Maimai Hamisi v Peris Pesi Tobiko & 2 others [2013] eKLR expressed itself thus:“It is enough to say that the right of appeal must be statute or other law-based and so viewed, there is nothing doctrinally wrong or violative of the Constitution for such right to be circumscribed in ways that render certain decisions of courts below non-appealable.”

22. The omission in this instance by the applicant to seek leave from the lower court touches on the jurisdiction of the court. The right to seek leave to appeal in the first instance before the court that issued an order to be appealed against is provided under statute and in mandatory terms under Section 75(1) of the Civil Procedure Act which states that:“(1)An appeal shall lie as of right from the following orders, and shall also lie from any other order with the leave of the court making such order or of the court to which an appeal would lie if leave were granted ….”

23. The Applicant’s application falls under matters under Order 43 which requires an applicant to seek leave from the court making such order in the first instance. This raised jurisdiction issues.

24. Jurisdictional issues are not matters that fall in the category of procedural technicalities and it is this courts considered view that the invoking of the provisions of Article 159(2)(d) cannot salvage the instant application as jurisdiction goes to the root of the matter and as was held in Owners of Motor Vessel ‘Lilian S’ vs Caltex Oil (K) Ltd (1989) KLR without jurisdiction this court or any other court can do nothing more than down its tools.

25. The Applicant has not demonstrated that they sought for leave before the Honourable magistrate to file an appeal, as the ruling only indicates that they only sought for stay of execution which was declined. The court has no jurisdiction to grant leave to file an appeal in the first instance.

Issue b). Whether the Applicant has met the threshold for grant of stay of execution. 26. The Applicant’s application was filed by the firm Masinde & Company Advocates which doubles as the advocate of the 2nd and 3rd respondents, the judgement debtors in the objection application in civil Suit No. 194 of 2018 which is the subject of the objector proceedings brought by the applicant.

27. The Applicant seeks for stay of execution pending the appeal of the ruling against the objector proceedings. The 1st respondent opposes the application on the basis that the advocate for the objector and the Judgement debtors are the same, and that the objector’s proceedings are just a collusion to defeat the 1st respondent’s right to enjoy the fruits of his judgement through execution.

28. The applicant argues that they have the right to be represented by the advocate of their choice and no conflict is manifested.

29. While In my view, the said firm of advocates acting for the Judgement-Debtors(2nd and 3rd Respondents) on the one hand and the Objector on the other would undoubtedly be a conflict of interest. The court however ought to focus on the prejudice that may be suffered by the judgment debtor in the presentation and not just the mere fact of being represented by same counsel.

30. The exercise of judicial power is guided by Article 159 of the Constitution as follows:-‘159. Judicial authority (1) Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution. (2) In exercising judicial authority, the courts and tribunals shall be guided by the following principles:- (a) justice shall be done to all, irrespective of status; (b) justice shall not be delayed; (c) alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3); (d) justice shall be administered without undue regard to procedural technicalities; and (e) the purpose and principles of this Constitution shall be protected and promoted.’’

31. The issue before the lower court was that the property attached for execution belonged to the objector and not the judgment debtor under Order 22 Rule 51 of the Civil Procedure Rules which provides:- ‘51. Objection to attachment [Order 22, rule 51. ] (1) Any person claiming to be entitled to or to have a legal or equitable interest in the whole of or part of any property attached in execution of a decree may at any time prior to payment out of the proceeds of sale of such property give notice in writing to the court and to all the parties and to the decree-holder of his objection to the attachment of such property. (2) Such notice shall be accompanied by an application supported by affidavit and shall set out in brief the nature of the claim which such objector or person makes to the whole or portion of the property attached. (3) Such notice of objection and application shall be served within seven days from the date of filing on all the parties. ‘’ On receipt of the application the court was obliged to comply with Rule 52 which provides:- ‘Upon receipt of a valid notice and application as provided under rule 51, the court may order a stay of the execution for not more than fourteen days and shall call upon the attaching creditor by notice in writing to intimate to the court and to all the parties in writing within seven days whether he proposes to proceed with the attachment and execution thereunder wholly or in part .’’ The lower court instead focused on party representation and dismissed the objection application without consideration of merits as frivolous. There was no basis of the conclusion. The execution was by the Claimant and not the defendant. The burden that the attached property belonged to the judgment debtor and not the objector was to be discharged by the claimant and not the defendant. The issue of conflict of interest cannot thus be a basis of defeating objection proceedings.

32. I find that the learned magistrate failed to exercise of his judicial power by focusing on the advocates representation when the respondent in the application was the claimant and not the defendant. That was a focus on technicalities defeating substantive justice.1. On the basis of the foregoing I set aside the ruling by Hon. T. M. Olando in Civil Case No. 194 of 2018 dated 11th October 2023 and return the application dated 15th September 2023 to the court for determination of the objection application on merit. I grant stay of the attachment of the property of Country Farms Limited in execution of the judgment debt pending hearing and determination on merits of the objection application dated 15th September 2023 before the Magistrate court.2. No order as to costs.3. It is so ordered.

DATED, SIGNED, AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 11TH DAY OF DECEMBER 2023. JEMIMAH KELIJUDGEIn The Presence Of:-Court Assistant: Lucy MachesoApplicant:- Absent1st Respondent: -Absent