[2022] KEHC 11738 (KLR)

Kamuya t/a Crater Views Auctioneers v Family Bank Limited; Musau & another (Interested Parties) (Miscellaneous Civil Appeal 208 of 2021) [2022] KEHC 11738 (KLR) (16 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11738 (KLR)

Republic of Kenya

In the High Court at Machakos

Miscellaneous Civil Appeal 208 of 2021

GV Odunga, J

May 16, 2022

Between

Philip Makao Kamuya t/a Crater Views Auctioneers

Appellant

and

Family Bank Limited

Respondent

and

Felix Kioko Musau

Interested Party

Boniface Mutuku Mutunga

Interested Party

Ruling

1. By a Notice of Motion dated November 8, 2021and filed on November 11, 2021, and expressed to be brought under Article 50 of the Constitution of Kenya, Sections 1A 1B & 3A and 80 of the Civil Procedure Act, Order 45 Rule 1 of the Civil Procedure Rules, and all other enabling laws, Philip Makao Kamuya t/a Crater Views Auctioneers, the Objector/Applicant herein moved this Court seeking the following orders:1)That this matter be certified as urgent and service be dispensed with in the first instance for the purposes of prayer 2 below.2)That pending inter-partes hearing of this Application, the Honourable Court be pleased to grant an order for stay of execution of the Orders entered against the Appellant on the August 26, 2021by the Principal Magistrate Hon. C.N. Ondieki.3)Thatthe Honourable court does issue any other reliefs it deems just and expedite (sic) in the circumstances.

2. The application was supported by a rather unclear affidavit sworn by Philip Makao Kamuya t/aCrater Views Auctioneers, the Objector/Applicant herein on November 8, 2021.

3. According to the deponent, upon receipt of warrants of sale of property in execution of a decree from A. K Mutua, Advocates, against the respondent, he proceeded to conduct a search on motor vehicle Reg. No. KAR 348H and found the motor vehicle reg. no. KAR 348H was registered in the joint names of the interested party and the respondent. According to him, the 1st interested party visited their offices with a copy of a loan offer from Family Bank alleging that though the Bank was listed as owners of the said vehicle, he had cleared the loan facility hence the Bank had no legal or equitable rights to the said vehicle and that he was in the process of negotiating with the insurance company to settle the decretal sum.

4. It was averred by the deponent that upon carrying out his own independent verification of the bank facility offer letter, he confirmed that indeed the bank had no legal or equitable interest over the said vehicle. As a result, the deponent attached the said vehicle and stored it at Tumbo Auction Centre.

5. It was therefore deposed that the Respondent’s Motion before the Magistrate’s Court was misleading, an afterthought and hopelessly conceived.

6. According to the deponent, though he was adversely mentioned in the said application, he was never accorded an opportunity of responding to the allegations therein and only came to learn of the application when he was served with a court order directing him to release the said vehicle. It was his view that unless the orders are granted the appeal would be rendered nugatory.

7. On behalf of the applicant it was submitted that the application emanates from the ruling of the Hon. C.N Ondieki delivered on the 26th day of August 2021. According to the applicant, it was a fatal omission by the respondent failure to sue the appellant in the objection proceedings. Though the process server deposed that the applicant was served with the objection proceedings, the applicant wondered the capacity in which the said service was effected when the applicant was never a party to the said proceedings.

8. According to the applicant, it is trite law that he who alleges must prove. However, the respondent failed to sue the appellant who by then had possession the said motor vehicle for auction sale, a fact which the Respondent was aware of. According to the deponent, the Respondent ought to have either sued the applicant or summoned him to explain the circumstances under which the attachment was done.

9. It was therefore submitted that the failure to sue the applicant in the objection proceeding was in bad faith and amounted to an abuse of the court process and the same ought to have been dismissed. Based on Bullen, Leak and Jacob’s Precedents of Pleadings 12th Edition Page 148 and Republic v Director of Public Prosecutions & another Ex Parte Chamanlal Vrajlal Kamani & 2 others (2015) eKLR it was submitted that the action of the Respondent amounted to an abuse of the court process since the applicant who was directly affected by the orders therein was neither sued nor given an opportunity to respond to the application.

10. In response to the application a replying affidavit was sworn by Peter Mwau Mutunga in his capacity as the Respondent’s Relationship Officer, Machakos Branch.

11. According to him, the application is misconceived and an abuse of the Court process as no new evidence, material or documents have been submitted to this Court for review or any form of consideration. It was deposed that the Ruling on the Respondent’s Notice of Motion dated 16th February 2021 against which the Appellant here seeks to appeal was read by the Court on 26th August 2021, seventy four (74) days before the filing of this application. It was further averred that the Appellant ought to have filed its appeal within thirty (30) days from the date the Ruling was delivered hence the current proceedings have been sought without leave of the Court and ought to be struck out at the earliest opportune moment possible.

12. It was averred that in the Supporting Affidavit is an admission that there was a principal-agent relationship between the Appellant herein and his instructing client, the 2nd interested Party who was aware that the current proceedings were ongoing and thus the onus of informing the Auctioneer of the proceedings of the trial court were on 2nd Interested Party and not the Respondent. It was nevertheless deposed that the applicant herein cannot feign ignorance of the current proceedings for the following reasons:i.On February 17, 2021, the Honourable C.A Ocharo granted the Respondent herein an Interim Order for stay for a period of 30 days and slated the Respondent’s Application for hearing on 3rd March 2021. ii.On February 19, 2021, instructions were issued by the Respondent’s advocates on record to a Court process Server, Mr. Oscar Odhiambo, for service of five (5) sets of copies of a Notice of Motion Application dated February 16, 2021filed under Certificate of Urgency, Court Order dated February 17, 2021, emanating from the said certified Application and a Notice of Change of Advocates, also dated 17th February 2021. iii.The said process server filed the Affidavit of Service sworn on February 24, 2021on March 2, 2021and a receipt Ref NumberEYDCLZ3Y was issued by the Court to that effect.iv.Under Paragraph 7 of the said Affidavit of Service, the said process server indicates that he served copies of the said documents on the Appellant but the Appellant refused to accept service.v.In light of the above, the Appellant was aware of the proceedings and knowingly failed to take any steps to be joined in the proceedings.

13. It was deposed that the Respondent herein joined the proceedings in the trial court as an Objector after filing an application under Order 22, Rule 51 of the Civil Procedure Rules, 2010, which require that notices and the application be served on the Judgment Debtor and all the parties in the suit. Apart from all the parties being served the Appellant/auctioneer was served as an abundance of action to avoid him selling off the attached motor vehicle.

14. According to the deponent the issues raised in the Supporting Affidavit are not new and had already been determined by the Court at length in its Ruling.

15. The Court was therefore urged to dismiss the application with costs for the following reasons:i.The Application was filed seventy four (74) days after the decision of the trial court which the appellant now seeks to appeal against, no leave was sought prior to filing the current application.ii.Whereas the Application has been filed as an appeal, it is wittingly clothed as an application for review under Order 45, Rule 1 of the Civil Procedure Rules, 2010. If that is the case, then the right forum for ventilating an application for review ought to be the trial Court that delivered the Ruling and not the Appellate Court.iii.An Order for stay of execution in the current circumstances thus ought to have been filed under Order 42, Rule 6 (2) of the Civil Procedures Rules, 2010 but in any case, the applicant has failed to demonstrate to the Court the loss that it will occasion if the Respondent’s and 2nd Interested Party’s Motor Vehicle registration number KAR 348H is released and that the applicant has presented the application inordinately late without any explanation to the Court and has failed to provide any form of security to the Court.iv.The applicant herein has tremendously failed to demonstrate how the orders of the trial court will aggrieve it given the well-reasoned 42-page ruling by Honourable C. N. Ondieki.v.The applicant has all along been aware of the proceedings in the trial Court and is thus not before this Court with clean hands.vi.There is no Memorandum of Appeal filed for consideration by the Appellate Court and thus the Appeal in itself has no legs no stand on.

16. It was submitted while reiterating the foregoing that both prayers 1 & 2 have been overtaken by events and the Court should not grant orders in vain based on the decision in KalyaSoi Farmers Cooperative Society vs. Paul Kirui& Another (2003) eKLR.

17. It was submitted that to the extent that the Application purports to be seeking stay pending appeal it ought to have been grounded under Order 42 Rule 6 of the Civil Procedure Rules. However, the Applicant has not complied with the provisions therein. It was further submitted that the Application has been brought after a long delay. Without proffering an explanation.

18. It was noted that there is no Memorandum of Appeal filed for consideration by the Appellate Court and thus the Application dated November 8, 2021in itself has no legs no stand on. Instead, the applicant has filed the current Application as a ‘Civil Miscellaneous Appeal’ which ie neither an Appeal, a ‘Civil Appeal’ or a ‘Miscellaneous Civil Application’. This is contrary to Order 42 Rule 1(1) of the Civil Procedure Rules. Reliance was placed on Geoffrey Maina Njuguna vs. Waweru Ndirangu [2022] eKLR.

19. Apart from the incompetence of this Application, it was submitted based on the contents of the replying affidavit that the orders sought should not be granted since the Application lacks merit.

20. Based on the foregoing the court was urged to dismiss the application and to award punitive costs given the fact that the application before court is incompetently fatal, is an abuse of the Court process, is frivolous, vexatious and a waste of judicial time as well as opposing counsel’s time.

Determination. 21. I have considered the issues raised herein. These proceedings brought as “Civil Miscellaneous Appeal”. However, the parties are described as “appellant”, “respondent” and “interested parties”. From that description, the applicant set out to portray the proceedings as being appellate proceedings. In fact, according to paragraph 14 of the supporting affidavit, the applicant seems to be of the view that unless the orders are granted the appeal would be rendered nugatory, though what he actually states is that “if an order of stay of execution of the order by the subordinate court is granted pending the hearing and determination of the appeal, the appeal will have been rendered nugatory.”

22. However, no memorandum of appeal has been filed or displayed in these proceedings. As rightly pointed out by the Respondent, Order 42 Rule 1(1) of the Civil Procedure Rules provides that “Every appeal to the High Court shall be in the form of a Memorandum of Appeal signed in the same manner as a pleading”. This provision was dealt with in Geoffrey Maina Njuguna vs. Waweru Ndirangu [2022] eKLR, in which the court expressed itself as hereunder:“It would seem therefore that the invocation of the jurisdiction of this court under Order 42 Rule 6 (1) or 6 (6) of the Civil Procedure Rules must be preceded by the filing of an appeal, or compliance with the procedure for filing an appeal, in this case a memorandum of appeal (See Order 42 Rule 1 of the Civil Procedure Rules). Until the memorandum of appeal is filed, the court may be acting in vacuo by considering the Applicants’ prayer for stay of execution pending a non-existent appeal.”

23. Therefore, if the application was meant to be an application for stay pending an appeal it would be incompetent for absence of an appeal.

24. In the absence of pleadings commencing an appeal, these proceedings can at best be deemed to be a miscellaneous application. Whereas it is appreciated that in appropriate cases, proceedings may properly be commenced in that manner, I associate myself with the views expressed by Wambilyangah, J in Sametract vs. Mumias Agricultural Transport Ltd. Kisumu High Court Civil Application No. 47 of 1997 that miscellaneous applications are meant for simple or uncontested matters. It is not an appropriate procedure for matters which are in serious contestation such as an appeal that they be commenced by miscellaneous application. It was therefore held in Stanley Mugacha vs. King Woolen Mills Ltd. Nairobi HCMA No. 767 of 1994 that an appeal should not be filed in a miscellaneous application.

25. Apart from that it is clear from the body of the application that prayer 1 which sought certification of the matter as urgent is spent. Prayer 2 sought that “pending inter-partes hearing of this Application, the Honourable Court be pleased to grant an order for stay of execution of the Orders entered against the Appellant on the August 26, 2021by the Principal Magistrate Hon. C.N. Ondieki.” That prayer was considered on November 12, 2021and was disallowed since, though it was crafted as a temporary relief, the application itself does not seek any substantive relief. Accordingly, that prayer is also spent. The third relief was for provision for costs of the application. As none of the prayers sought is an interlocutory or interim relief as opposed to temporary relief, the application is rendered incompetent.

26. This application seems to stem from objection proceedings. The applicant was not a party to those proceedings but insists that he ought to have been either joined thereto or notified of the same. If that position is correct, as the issue for determination revolves around execution, the applicant’s grievances fall squarely under Section 34(1) of the Civil Procedure Act which provides that:All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit.

27. Accordingly, the applicant ought to have ventilated his grievances in the proceedings that gave rise to this application.

28. As has been held time without a number, where a procedure is prescribed dealing with particular circumstances, that procedure ought to be strictly adhered This principle was well articulated by the Court of Appeal in Speaker of National Assembly vs. Njenga Karume [2008] 1 KLR 425, where it held that;“Irrespective of the practical difficulties enumerated...these should not in our view be used as a justification for circumventing the statutory procedure....In our view, there is considerable merit in the submission that where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.”

29. In Kenindia Assurance Company Limited vs. Commercial Bank of Africa Limited & Another Nairobi (Milimani) HCCC No. 2012 of 2000 where Mbaluto, J held that:“Where the issues raised in the suit and the application relate to the claim for fees by the 2nd defendant (auctioneer) for the attachment and proclamation of the plaintiff’s goods in execution of the decree issued in another case, the issues clearly arise between the parties to the said suit and also relate to the execution of the decree in the same suit, they are caught by the provisions of section 34 of the Civil Procedure Act.”

30. In the premises, I find no merit in this application which I hereby dismiss with costs to the Respondent.

31. It is so ordered.

READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 16TH DAY OF MAY, 2022G V ODUNGAJUDGEDelivered the presence of:Mr Okinyo for the applicantMiss Yegon for Mr Orende for the Respondent*CA Susan