[2017] KEHC 9471 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

CIVIL DIVISION

CIVIL APPEAL NO. 146 OF 2013

BETWEEN

KENYA ORIENT INSURANCE CO. LTD…………APPELLANT

VERSUS

MOHAMMED JACOB KULUBI………………..RESPONDENT

(Being an appeal from the Decision and judgment of Hon. L.M. Nafula, SPM delivered on 5th November, 2013 in Mumias PMCC No. 360 of 2009)

R U L I N G

The Application

1. The application coming up for determination is the notice of motion dated 21. 06. 2017 seeking the following substantive orders;-

1. ) The Honourable court be pleased to compel the lower court to avail the court file.

2. ) In the alternative, the honourable court to (sic) compel the lower court to deliver a written judgment having delivered an oral judgment on 05. 11. 2013

3. ) Costs of this application be provided for;-

2. The application is supported by the five grounds set out on the face and by the affidavit sworn by Volta N. Oribo sworn on 21. 06. 2017. The applicant’s main contention is that there is a likely danger of the appeal being dismissed for want of prosecution unless the orders sought are granted.

Response to the Application

3. The respondent filed a replying affidavit dated 03. 07. 2017 in opposition to the application. The respondent avers that since 22. 07. 2014, the applicant has been enjoying an order of stay and has not since that date made any effort to have the [Lower Court] file forwarded to this court for further action. He also submitted that he applicant has not demonstrated to this court that he applied for the proceedings of the lower court for purposes of this appeal. The respondent therefore prays that the application be dismissed with costs.

Submissions

4. The application was canvassed by way of written submissions. In support of its application, reliance by the applicant was placed on the following authorities:-

1. ) Kenya power & Lighting Company Ltd – vs – Benzene Holdings Ltd T/A Wyco Paints [2016] eKLR where the court stated inter alia, as follows.

“Section 3A of the Civil Procedure Act appears to have been introduced to argument the provisions of Section 3 vesting in the court’s inherent powers to make orders as may be necessary for the ends of justice or to prevent abuse of the process of the court of course these power has now been broadened by the introduction in 2009 of the overriding objective in Sections 1A and 1B and in 2010 by Article 159 of the Constitution.”

2. ) Oraro & Rachier Advocates – Vs – Co-operate Bank of Kenya Ltd [2001]eKLR where the court noted that since the decision appealed against was neither signed nor dated as prescribed by the rules, the failure to comply rendered that decision a nullity

3. ) Peter Biwott- vs – Samwel Biwott & 3 others [2015]eKLR where he court held that a judgment which was neither dated nor signed in accordance with the law, though delivered was a nullity and the case was referred to the trial Court for retrial.

5. The respondent’s submissions are dated 31. 07. 2017. The submissions are centered on the replying affidavit, the arguments being that the applicant has not shown that it has asked for the lower court file or that it made any attempts to apply and pay for the proceedings and judgment. The respondent’s position is that no oral judgment was delivered as alleged. It is contended that the learned trial Magistrate delivered the judgment in the presence of both counsel as a result of which the respondent, filed a bill of costs which was duly signed on 10. 12. 2013. The respondent contends that this application is intended to forestall his attempts to recover costs.

Analysis and Determination

6. I have now carefully considered the application as filed, the submissions in support thereof and the various authorities cited by counsel for the applicant. I have also considered the rival submissions filed on behalf of the respondent, together with the respondent’s replying affidavit. It is not disputed that he orders sought by the applicant herein are within the discretion of this court, the only constraint being that any discretion must be exercised judiciously and not whimsically. The applicant is also calling upon this court to exercise its inherent powers and issue the orders sought in order to meet the ends of justice. An excerpt from the Kenya Power & Lighting company case (supra) at pages 4 and 5 of the judgment of the Court will suffice in this regard, and as noted by the court “ inherent jurisdiction is a residual intrinsic authority which the court may resort to in order to put right that which would otherwise be on injustice.” The relevant portion of the judgment reads.

“The extent of inherent powers of the court was eloquently explained by the authors of the Halsbury’s Laws of England, 4th Edn. Vol. 37 para. 14 as follows;

“The jurisdiction of the court which is comprised within the term “Inherent” is that which enables it to fulfill itself, properly and effectively, as a court of law. The overriding feature of the inherent jurisdiction of the court is that it is part of procedural law, both civil and criminal, and not part of substantive law; it is exercisable by summary process, without plenary trial; it ma y be invoked not only in relation to the parties in pending proceedings, but in relation to anyone, whether a party or not, and in relation to matters not raised in litigation between the parties; it must be distinguished from the exercise of judicial discretion; it may be exercised even in circumstances governed by rules of court. The inherent jurisdiction of the court enables it to exercise control over process by regulating its proceedings, by preventing the abuse of the process and by compelling the observance of the process…. In sum, it may be said that he inherent jurisdiction of the court is a virile and viable doctrine and has been defined as being the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them.” See alsoMeshallum Waweru Wanguku (supra)

7. Applying the above principles to the instant application, I am satisfied that the notice of motion dated 21. 6.2017 has merit. In the first place, although the respondent alleges that a judgement was delivered in the presence of both parties, he has not exhibited a copy of the said judgment. It is therefore not clear to this court whether indeed a written judgment was delivered by Hon. L. M. Nafula, SPM Mumias at the time. It may therefore be true, as stated by the applicant, that the learned magistrate gave an oral judgment. It may also be true that the learned magistrate delivered a written judgment, but in the absence of the lower court record, this court has no way of knowing where the truth lies.

Conclusion

8. In the premises, the notice of motion dated 21. 6.2017 be and is hereby allowed in terms of prayer 3 thereof. In the unlikely event that the lower court file cannot be traced for the writing of the judgment then the lower court file shall be reconstructed from copies of pleadings to be extracted from counsel’s files to enable the case to be heard afresh by a Magistrate based at Mumias Law Courts, other than Hon. L.M. Nafula.

9. Concerning the costs of this application and considering the reasons for the filing of the application, each party shall bear its own costs.

Orders accordingly

Ruling delivered, dated and signed in open court at Kakamega on this 12th day of October, 2017

RUTH N. SITATI

JUDGE

In the presence of :-

Mr. Nyambane (absent)…For Applicant/Appellant

Mr. Mwebi (absent)…......................for Respondent

Polycap……………......................…Court Assistant