[2023] KEHC 25449 (KLR)

ENA Investment Ltd v Mose & another (Suing as the Legal Representatives of the Estate of Enock Arani Mose - (Deceased) & another (Civil Appeal E013 of 2022) [2023] KEHC 25449 (KLR) (17 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25449 (KLR)

Republic of Kenya

In the High Court at Bomet

Civil Appeal E013 of 2022

RL Korir, J

November 17, 2023

Between

ENA Investment Ltd

Appellant

and

Benard Ochau Mose & Jane Bosibori Ochau (Suing as the Legal Representatives of the Estate of Enock Arani Mose - (Deceased)

1st Respondent

Elimonyaco Auctioneers

2nd Respondent

(Being an Appeal from the Ruling by Hon. Evans Muleka dated 27th January 2022 in CMCC No. 214 of 2015 at Sotik Law Courts)

Judgment

1. The impugned Ruling delivered by the trial court on 27th January 2021 was for the Appellant’s Notice of Motion dated 26th January 2021 where the Appellant had sought among others for the Warrants of Attachment dated 5th January 2022 to be declared null and void and that they be vacated.

2. In the impugned Ruling, the trial court stated that it stood with its earlier Ruling issued on 9th November 2021 and that it had no jurisdiction to stop parties from pursuing an execution as the Decree was legally obtained. The trial court further stated that the Appellant’s recourse lay with the High Court.

3. Being dissatisfied with the said Ruling of the trial court, the Appellant appealed to this court through the Memorandum of Appeal dated 3rd February 2022 and relied on the ground that the learned Magistrate erred in law and in fact by issuing the said warrants of attachment against the Appellant having pronounced itself in a Ruling dated 9th November 2021 to have no jurisdiction therein and the said Ruling has not been appealed against or reviewed by any of the parties therein.

4. The duty of the 1st appellate court is to re-evaluate and re-examine the evidence of the trial court and come to its own findings and conclusions. This principle was espoused in the Court of Appeal case of Kiilu & Another v Republic (2005)1 KLR 174

The Appellant/Defendant’s case 5. The impugned Ruling arose from the Notice of Motion dated 26th January 2022 in which the Appellant sought the following orders: -I.That this Application be certified as urgent and the same be heard ex-parte at the first instance.II.That pending the hearing and determination of this Application inter-parties, there be a stay of execution of warrants of attachment dated the 5th day of January 2022 and all consequential orders in favour of the decree holder and the 2nd Defendant/Respondent till this Application is heard and determined.III.That the said warrants of attachment dated the 5th day of January 2022 be declared as illegal and vacated forthwith.IV.That the parties herein be and hereby ordered to comply with the court orders dated the 9th day of November 2021. V.That the decree holder and the 2nd Defendant/Respondent be ordered to pay the Applicant Kshs 100,000/= as instruction fees and Kshs 70,000/= as costs of prosecuting this Application to forestall the abuse of the court’s process.

6. It was the Appellant’s case that the trial court in its Ruling dated 9th November 2021 declared the matter res judicata and that any subsequent extension of the warrants of execution was illegal. That the warrants of attachment extracted on 5th January 2022 were therefore illegal as they were extracted without disclosure of material facts. It was the Appellant’s further case that the Ruling dated 9th November 2021 had not been appealed or reviewed hence the trial court did not have the authority to extend the warrants of attachment.

7. The Appellant stated that it had fully settled the claim and that the decree holder had failed to keep a proper and accurate account of monies paid to him.

8. It was the Applicant’s case that the Respondents were out to enrich themselves.

9. The Applicant stated that the decree holder in an affidavit dated 6th September 2021 had indicated that the decretal sum, costs and accrued interest was Kshs 1,682,638/=. That there was no explanation how the amount changed to Kshs 861,972/=.

10. It was the Applicant’s case that as a result of the threats of attachment, it had been forced to retain the services of an advocate at a cost of Kshs 100,000/= and an additional Kshs 70,000/= to prosecute the Application. That the said costs would prohibit idlers and fraudsters from abusing the court process.

11. On 15th March 2022, I directed the Appeal be canvassed by way of written submissions.

The Appellant’s written submissions. 12. Through its submissions dated 29th March 2023, the Appellant submitted that the trial court erroneously clothed itself with powers to issue further warrants of attachment dated 5th January 2022 despite its earlier Ruling dated 9th November 2021. That the trial court in its Ruling dated 9th November 2021 had stated that it could not entertain Applications on administrative commissions or omissions. The Appellant further submitted that the trial court issued warrants of attachment based on an issue it had deviated from.

13. It was the Appellant’s submission that the trial court had not conclusively determined the issue of payments but instead ousted its jurisdiction and thereafter proceeded to issue warrants of attachment against the Appellant.

14. The Appellant submitted that the 1st Respondent did not harmonize his books of accounts and that they illegally transferred the money meant for the trial suit to other businesses. The Appellant further submitted that the impugned warrants issued on 5th January 2022 were illegal as it had fully settled the decretal sum and that the trial court had no powers to issue further warrants of attachment after it had declared itself to have no jurisdiction to entertain the parties further.

15. It was the Appellant’s submission that the 1st Respondent failed to abide by Order 22 Rules 1 and 2 by failing to inform the trial court of any payments or adjustments made. That it was clear that when the application for execution of the decree was being made, the 1st Respondent was not ready and willing to know how much money had been paid and to whom.

16. The Appellant submitted that it had advanced the entire decretal sum to the decree holder’s advocates and that it had provided the payment vouchers as evidence of the same. That the 1st Respondent was guilty of not disclosing to the court that they had received payment of Kshs 1,360,000/= from the Appellant. It was the Appellant’s further submission that the 1st Respondent did not show how he arrived at the figure of Kshs 861,972/=.

17. It was the Appellant’s submission that the trial court directed them to handle the matter administratively by reconciling their accounts to ascertain the total amount paid but the same did not happen. That the 1st Respondent obtained the warrants for a non-existing balance of Kshs 861,972/=

18. The Appellant submitted that the 1st Respondent had diverted funds (Kshs 500,000/=) meant for the trial suit being Sotik Civil Suit Number 214 of 2015 to Nyamira PMCC No. 169 of 2015. That the Respondents wanted to unjustly enrich themselves at the expense of the Appellant. The Appellant further submitted that the Ruling dated 9th November 2021 had not been reviewed or appealed and that the Respondents should not be allowed to cherry pick which part of the orders they ought to comply with.

19. It was the Appellant’s submission that it was aggrieved by being dragged in unnecessary litigation at the trial court after its insurer had paid the full decretal sum. He prayed that this court compel the 1st and 2nd Respondents to pay the Appellant Kshs 350,000/= as costs.

The Respondents’ written submissions. 20. Through their submissions dated 26th April 2023, the Respondents submitted that payment vouchers of Kshs 820,666/= had been paid in their favour. That once the trial court determined the issue between the Appellant and themselves as administrative, they tried to reach out to the Appellant to address the issue of the decretal balance without any success.

21. It was the Respondents’ submission that the Appeal was incompetent for failure to include the copy of the order appealed from. They relied on Order 42 Rule 2, Ndegwa Kamau t/a Sideview Garage v Fredrick Isika Kalumbo (2016) eKLR and South Nyanza Sugar Co. Ltd v Simeona A. Opola (2020) eKLR.

22. The Respondents submitted that the trial court was clear that the issue of the amounts paid would be sorted out administratively. That the issue of who was to pay and how much had been conclusively addressed by the court in its Judgment delivered on 17th May 2018 and the court rightly declared the matter res judicata. They relied on Dinesh Construction Company Limited vs Kenya Sugar Research Foundation (2021) eKLR.

23. It was the Respondents’ submission that nothing stopped the trial court from signing warrants in respect of the balance of the decretal sum. That the valid Decree in their favour had not been set aside and that the issuance of the warrant did not contradict the Ruling delivered on 9th November 2021.

24. The Respondents submitted that they had dislodged the Appellant’s argument that it had fully settled the decretal amount by producing a letter dated 26th August 2019 from the Appellant’s insurer which showed that cheque number 005827 for the sum of Kshs 500,00/= was paid to their advocates for suit number Nyamira PMCC No. 165 of 2015.

25. It was the Respondents’ submission that the Ruling dated 9th November 2021 did not imply that the court lacked jurisdiction to sign warrants in favour of a party with a regularly obtained Decree. That the Appellant could not use the said Ruling to run away from the obligation to settle the decretal sum in full.

26. In regards to Order 22 Rules 1and 2, both parties are obligated to inform the court of any adjustment in the Decree. That the Appellant failed to disclose to the court that its insurer had made undisclosed deposits in their advocate’s account and only made it known once they were served with warrants. They further submitted that subsequent warrants were duly made after taking into account the amount that had already been paid.

27. I have perused and considered the Memorandum of Appeal dated 3rd February 2022, the Supplementary Record of Appeal dated 5th June 2023, the Appellant’s written submissions dated 29th March 2023 and the Respondents’ written submissions dated 26th April 2023. I have also gone through the court record and I have noted that the Application was filed on 26th January 2022 and it was heard and determined the following day, 27th January 2022. There was no response from the Respondents. The trial court gave the impugned Ruling on 27th January 2022. The sole issue for my determination is whether I should set aside the Ruling dated 27th January 2022 and the warrants of attachment dated 5th January 2022.

28. Before I delve into the substantive issues of the Appeal, I shall address the preliminary issue that was raised by the Respondents on the competency of the Appeal as the Memorandum of Appeal did not contain the order appealed from.

29. Order 42 Rule 13(4) of the Civil Procedure Rules provides as follows: -Before allowing the appeal to go for hearing the judge shall be satisfied that the following documents are on the court record, and that such of them as are not in the possession of either party have been served on that party, that is to say—(a)the memorandum of appeal;(b)the pleadings;(c)the notes of the trial magistrate made at the hearing;(d)the transcript of any official shorthand, typist notes electronic recording or palantypist notes made at the hearing;(e)all affidavits, maps and other documents whatsoever put in evidence before the magistrate;(f)the judgment, order or decree appealed from, and, where appropriate, the order (if any) giving leave to appeal:Provided that—(i)a translation into English shall be provided of any document not in that language;(ii)the judge may dispense with the production of any document or part of a document which is not relevant, other than those specified in paragraphs (a), (b) and (f).

30. In the case of Mukenya Ndunda v Crater Automobiles Limited (2015) eKLR the Court of Appeal emphasized that:-“The power to strike out an appeal or a notice of appeal on account of failure by an appellant to follow the rules of procedure requires to be exercised carefully and only in cases where it is shown that the party at fault flagrantly or deliberately or flippantly or recklessly failed to follow the rules.”

31. I have gone through the court record and I have noted that on 8th May 2023, Mr. Aroya, the Appellant’s advocate sought the leave of this court to file a Supplementary Record of Appeal and that leave was granted on the same day. In the court file, there is a Supplementary Record of Appeal dated 5th June 2023 which contained the court orders of Hon. Evans Muleka, Principal Magistrate, Sotik dated 9th November 2021 and 27th January 2022.

32. Based on the above, I dismiss the Respondents’ submission that the Record of Appeal was incomplete and therefore find that the Appeal is complete and competent for determination.

33. The impugned Ruling delivered on 27th January 2022 was for the Appellant’s Notice of Motion Application dated 26th January 2022 whose grounds were captured earlier on in this Judgment. The impugned Ruling stated: -“This court still stands by the ruling it issued on the 9th of November 2021 and the court has no jurisdiction to stop parties to pursue execution of either party on decree legally obtained. In my view, the Applicant’s recourse lies in the High Court”.

34. In order to understand the impugned Ruling, I have to consider the Ruling dated 9th November 2021 even if it is not the subject of this Appeal and the brief history of the suit up to this point.

35. The Respondents (then Plaintiffs) sued the Appellant (then Defendant) for general and special damages arising out of a road traffic accident where the Motor Vehicle Registration Number [particulars witheld] knocked down Enock Arani Mose (deceased) who was riding on Motor Cycle Registration Number [particualars witheld] causing him fatal injuries.

36. The Appellant (then Defendant) neither entered appearance nor filed its defence. A formal proof hearing was conducted and the trial court rendered its Judgment on 17th May 2018 where the Respondents (who sued on behalf of the estate of the deceased) were awarded Kshs 1,035,250/=.

37. The process of execution begun when the Decree dated 28th January 2019 was extracted and warrants of attachment dated 28th January 2019 were issued to the 2nd Respondent (Elimonyaco Auctioneers). The warrants were thereafter re-issued on 10th August 2021 for the sum of Kshs 1,682,638/=. The 2nd Respondent thereafter went ahead to proclaim the Appellant’s four motor vehicles through the Proclamation Notice dated 16th August 2021.

38. It is the re-issuance of the warrants on 10th August 2021 and the Proclamation Notice dated 16th August 2021 that prompted the Appellant to file a Notice of Motion Application dated 26th August 2021 where it sought the following orders: -I.That this Application be certified as urgent and the same be heard ex-parte in the first instance.II.That this Honourable Court be pleased to grant leave to the firm of Messrs Ayora Magaty & Company Advocates to come on record on behalf of the 1st Defendant/Applicant as contained in the consent dated the 26th day of August 2021. III.That pending the hearing and determination of this Application inter-parties, there be a stay of execution of the decree and all consequential orders against the Decree holder and the 2nd Defendant/Respondent till this Application is heard and determined.IV.That this Honourable Court be pleased to order that the total amount of Kshs 1,682,638/= as stipulated in the 2nd Defendant/Respondent’s proclamations dated 16th August 2021 is illegal.V.That this Honourable Court be pleased to declare that the entire decretal amount has been paid and the file be declared as closed.VI.That this Honourable Court be pleased to award the Applicant herein Kshs 70,000/= for the purposes of hiring an advocate and filing this Application.

39. In its Ruling dated 9th November 2021, the trial court stated: -“I have looked at those responses but I must say they both amount to abuse of the court process. In my opinion, this court is res judicata and cannot be entertaining applications on administrative omissions or commissions by the advocates on the same.It’s not this court’s duty to ascertain who paid whom and by what cheque and for which matter from which court. In my view, this is purely administrative and it can be handled at office level by parties involved.I therefore see no room to be involved further in this matter. It is an old matter which was finalised more than 3 years ago, no appeal was lodged and as far as I’m concerned, the matter is res judiacta. I will not therefore delve into the merits or demerits of the application. Any party who is dissatisfied has leave to move the High Court.”

40. My understanding of the above Ruling was that the Notice of Motion Application dated 26th August 2021 was dismissed and neither of the prayers contained in the Application were granted. This meant that the trial court did not declare that the Appellant had fully settled the decretal amount. It is salient to note that this Ruling had neither been reviewed nor appealed against and it was therefore valid and in force.

41. The Respondents applied and were issued warrants of attachment dated 5th January 2022 for the sum of Kshs 861,972/=. In its Notice of Motion Application dated 26th January 2022, the Appellant wanted the trial court to declare the warrants dated 5th January 2022 as illegal and further that they be vacated as the trial court had declared the matter res judicata. The trial court in its Ruling stated that it had no jurisdiction to stop parties from pursuing execution of a legally obtained decree. It is this Ruling that is the subject of this Appeal.

42. After going through the court record, it is clear to me that there was a dispute as to whether the Appellant fully settled the decretal amount. The Appellant on one hand stated that he had fully settled the decretal amount and the 1st Respondent stated that after scrutiny of their advocates accounts, they discovered that the Appellant had settled Kshs 820,666/= and had remained with a balance of Kshs 861,972/=.

43. As I noted earlier, this Ruling was made without giving the parties a chance to present their evidence in respect of the payments and the balance thereof. The only evidence on record which I shall consider are contained in the previous Notice of Motion Application dated 26th August 2021 where the Appellant in the supporting affidavit sworn by Evans Anyona attached three payment vouchers being voucher number 043437/2019 dated 26th September 2019 for the sum of Kshs 320,666/=, voucher number 042569/2019 dated 22nd August 2022 for the amount of Kshs 500,000/= and voucher number Kshs 042570 dated 22nd August 2022 for the amount of Kshs 500,000/=. The same were marked as RM-3b and RM-3c respectively.

44. The total amount as indicated by the payment vouchers above was Kshs 1,320,666/= and this was the amount that the Appellant had paid by 22nd August 2022.

45. The Respondents on the other hand attached cheque number 005827 from the Appellant’s Insurer for the amount of Kshs 500,000/=. They also attached a forwarding letter from the Appellant’s Insurer explaining that the stated amount was for the settlement of Nyamira Suit Number 169 of 2015. This evidence in my view is immaterial to this case as there was no payment connection between the primary suit being Sotik Civil Suit Number 214 of 2015 and Nyamira Civil Suit No. 165 of 2015. The evidence simply showed that Amaco Insurance Company paid Kshs 500,000/= for Nyamira Civil Suit No. 165 of 2015.

46. I agree with the trial court that the claim and counter claim of money being paid or not was an administrative duty to be conducted by both parties and it was not the duty of the courts to keep account of what sum had been paid or not.

47. In my analysis, by the time the impugned warrants were issued on 5th January 2022 for the payment of Kshs 861,972/=, the whole decretal sum had not been paid. According to the evidence, the Appellant made a payment of Kshs 1,000,000/= on 22nd August 2022 which was almost seven months after the impugned warrants had been taken out. This meant that the Respondents had a legitimate basis for applying for the impugned warrants of attachment.

48. Turning to the issue of the trial court’s jurisdiction in execution proceedings, section 30 of the Civil Procedure Act provides that: -A decree may be executed either by the court which passed it or by the court to which it is sent for execution.

49. Section 38 of the Civil Procedure Act lists the various ways a court can enforce execution. It provides that: -Subject to such conditions and limitations as may be prescribed, the court may, on the application of the decree-holder, order execution of the decree—(a)by delivery of any property specifically decreed;(b)by attachment and sale, or by sale without attachment, of any property;(c)by attachment of debts;(d)by arrest and detention in prison of any person;(e)by appointing a receiver; or(f)in such other manner as the nature of the relief granted may require

50. Court is defined in the Civil Procedure Act as the High Court or a subordinate court, acting in the exercise of its civil jurisdiction.

51. This then means that a decree can be executed by the court which passed it or if transferred, to that court which the decree has been transferred to. For the purpose of this Appeal, it means that the trial court had jurisdiction to conduct execution proceedings.

52. The trial court only becomes functus officio in as far as determining the case and issuing a Judgment. Execution proceedings are distinct proceedings which take a life of their own. In this case, the trial court after delivering its Judgment on 17th May 2018, had the jurisdiction to conduct execution proceedings by attaching the Appellant’s movable property.

53. I am persuaded by the case of Republic v the Chief Magistrate’s Court (2020) eKLR, where the court in discussing whether the Chief Magistrate overstepped his mandate in executing a decree by way of arrest stated that:-“.... The learned magistrate did not over-step the jurisdiction as a magistrate nor did he overstep the jurisdiction donated by S.51 of the Civil Procedure Act. Moreover he was enforcing a decree properly and lawfully made under the judgment of that court in CMCC No.198 of 1994 which to date is valid... ”

54. Similarly in Olkejuado Teachers Credit & Savings Society Ltd v Chairman of the Co-operative Tribunal Nairobi (2005) eKLR, Ibrahim J. (as he then was) held:-“... By signing the warrants the Principal Magistrate brought the same subject ...”

55. It is my finding that the trial court erred when it found that it had no jurisdiction and that the Appellant’s recourse lay with this court. The warrants issued on 5th January 2022 were legal as they were properly issued by the court that passed the Decree. What was in contention was the amount that sought to be paid. Each party had their respective positions as shown earlier in this Judgment.

56. I have said enough to show that the trial court abdicated its responsibility in not concluding the execution process. The trial court was still the proper forum for the parties to resolve this dispute. I however observe that this was an old matter which has been in court since 2015. In the interest of justice, I direct the parties to appear before the Deputy Registrar of this court for the calculation and reconciliation of the payments and to have a proper Decree drawn.

57. The warrants dated 5th January 2022 were legal. However, they were issued on a disputed amount. It is just that the same are vacated to pave way for both parties to reconcile their accounts and appear before the Deputy Registrar of this court.

58. In the end, it is my finding that the Appeal dated 3rd February has merit and is partially allowed. I grant the following orders: -I.The warrants of attachment dated 5th January 2022 and all consequential orders be and are hereby vacated.II.The trial court is now functus officio in this suit.III.This file is referred to the Deputy Registrar, Bomet High Court to compute the balance of the decretal sum and for any further action.IV.Each party shall bear their own costs in this Appeal.V.The Respondents shall have the costs of the suit in the lower court as awarded by the trial court.

59. Orders accordingly

JUDGEMENT DELIVERED, DATED AND SIGNED AT BOMET THIS 17TH NOVEMBER , 2023. ...............R. LAGAT-KORIRJUDGEJudgement delivered in the presence of Mr. Ayora for the Appellant and in the abscence of Ms. Kusa for Respondents.