[2011] KECA 114 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA ATMOMBASA

(CORAM: BOSIRE, WAKI & ONYANGO OTIENO, JJ.A.)

CIVIL APPEAL (APPLICATION) NO. 230 OF 2009

BETWEEN

MISTRY VALJI NARAN MULJI…………………......….APPLICANT/1ST RESPONDENTS

AND

1. VANTAGE ROADTRANSPORTERS LTD......1ST RESPONDENT/APPELLANT

2. SHAHID PERVEZ BUTT ……………….….... 2ND RESPONDENT/APPELLANT

3. JANENDRA RAIACHAND SHAH …….………..…..………. 3RD RESPONDENT

4. JANEHAND MULJI MALDE ………….……….……........…. 4TH RESPONDENT

5. RATILAL CHELA SAMAT ……………………………….…. 5TH RESPONDENT

6. PREMAC PROPERTIES LTD …………………………….…6TH RESPONDENT

7. EQUATORIAL COMMERCIALBANK LTD............................7TH RESPONDENT

(Application to strike out the notice and record of appeal from the ruling and order of the High Court of Kenya at Mombasa (Mwera, J.) dated 29th July, 2005

in

H.C.C.S.NO.55 OF 2005)

*************************

RULING OF THE COURT

In a plaint dated and filed on 11th March 2005, the applicant in the notice of motion dated 15th October, 2009, who is the first respondent in the notice of motion dated 27th January 2010 and filed on 28th January 2010, Mistry Valji Naran Mulji,sued Janendra Raichand Shah, Virchand Mulji Malde, Ratilal Ghela Samat, Premac Properties Ltd, Vantage Road Transporters Limited and Equatorial Commercial Bank Ltd seeking judgment against them for Kshs.600,000/-, aggravated damages, injunction against Vantage Road Transporters or its agents, from committing trespass or dealing with the subject properly in any way and against all defendants restraining them from dealing with the disputed property in any way. That plaint was amended extensively and entirely fresh prayers were set out in the amended plaint. As they were many prayers and as they are not relevant to the matters before us, we will not reproduce them in the ruling save to state that the first, second, third, fifth and sixth defendants in that suit filed defences against that plaint and that an application was apparently made for temporary injunction. An interim order of injunction was granted on 21st March 2005, but later it was alleged in another application by way of notice of motion dated 12th April 2005 filed pursuant Order 39 rule 2A(2) and Order 50 rule 1 of the Civil Procedure Rules that the fifth defendant, Vantage Road Transporters Limited had defied that order. The plaintiff in the plaint, Mistry Valji Naran Muljisought two orders namely:-

“(i)That the fifth defendant be punished for defying the Court’s orders given on 21st March 2005 and particularly …………….?

(ii)That one Shahid Pervez Butt, the Managing Director of the fifth defendant be detained in prison for a maximum of 6 months for showing ridicule and contempt at the said Court order of 21st March 2005 when it was served on him and for the breach of its terms.”

That application was placed before Mwera, J. who, after full hearing, in a ruling dated 29th July 2005, made firm orders namely:-

“(i) The 5th defendant is found guilty of disobeying the Court’s orders of 21st March 2005.

(ii)Its Managing Director one, Butt, shall go into civil jail for 3 months on that account.

(iii)The plaintiff shall go back or continue in occupation of the subject plot until the inter-partes hearing of the injunction application or further orders.”

Vantage Road Transporters Limited and its Managing Director Shahid Pervez Butt, the affected parties were aggrieved by those orders and after filing notice of appeal, they proceeded to file and did file Civil Appeal No. 230 of 2009 against the ruling. The appeal was filed on 18th September 2009 against Mistry Valji Naran Mulji as the first respondent. The other respondents were Janedra Raichard Shah, Virchand Mulji Malde, Ratilal Ghela Samat, Premac Properties Ltd, and Equatorial Commercial Bank Ltd being the second, third, fourth, fifth and sixth respondents respectively.

Upon being served with the record of appeal, Mistry Valji Naran Mulji moved to court by way of notice of motion dated 15th October 2009 filed on 16th October 2009 and sought orders:-

“1. That the appeal filed in the Court of Appeal Registry at Mombasa on the 18th day of September, 2009 be struck out and or dismissed.

2. That the 1st and 2nd respondents/appellants be ordered, jointly and severally to pay the costs of the appeal and the application.

3. That the 1st and 2nd respondents/appellants be ordered to pay the costs of this notice of motion to the applicant /1st respondent.”

Before we proceed further, it is proper to mention here that as the appellants were Vantage Road Transporters Limited and its Managing Director, who came into the dispute midstream on allegations of disobedience of the court orders, the Managing Director Shahid Pervez Buttbecame the second respondent in this application. Thus, whereas in the appeal the respondents are six, in this notice of motion they are seven. There is apparently a mistake in the numbering of the respondents in the notice of motion but as the names are clearly spelt out we will not read any sinister motive in the numbering of the respondents. The grounds in support of the application are that the record of appeal filed does not include the plaint and defence filed in the High Court at Mombasa, in HCCC No.55 of 2005 which are primary documents; that the appeal was filed pursuant to an order of the High Court granting extension of time to file notice of appeal whereas the High Court had no jurisdiction to grant such an order and therefore the order authorizing the extension of time was null and void and of no effect; that the appeal filed on the strength of such a notice of appeal cannot in law be valid; that in any case, a notice of appeal and an appeal, being Civil Appeal NAI. 274 of 2005 had been struck out on 27th July 2007; that as the first and second respondents/appellants had already taken proceedings in the Court of Appeal, the superior court had no jurisdiction, residual or otherwise, to extend the time either in respect of the notice of appeal or in respect of the filing of an appeal which could only be granted by this Court; that the appeal is an abuse of the process of the court and lacks bona fides; and that the memorandum of appeal filed does not reflect the true situation of what took place before the superior court. That application was supported by an affidavit sworn by Mistry Valji Naran Mulji which on the main, explained the grounds set out in the notice of motion. The record before us shows that there was no reply to that affidavit.

However, apparently reacting to that application, the first and second respondents in the application namely, Vantage Road Transporters Limited and Shahid Pervez Butt, filed a notice of motion dated 27th January 2010, on 28th January 2010. We have mentioned it hereinabove. In that notice of motion, the first and second respondents who are the applicants sought three orders namely that:-

“(a)The appellants/applicants be granted leave to file a supplementary record of appeal.

(b)The supplementary record of appeal already filed by the appellants/applicants and served upon the respondents be deemed to have been duly filed and served.

(c)The costs of and incidental to this application (sic) abide the result of the appeal.”

The grounds in support of that application were in brief that the supplementary record sought to be introduced would include documents falling under rules 85(1)(c) and 89(3) of the Court of Appeal Rules and the documents are plaint; amended plaint; defences and other documents filed by the parties in the superior court; the said documents are missing from the record of appeal and objection has been taken against their omission; that while some of the documents sought to be lodged by way of supplementary record were not served upon the appellants and was not in their possession, others were inadvertently omitted from the record; that certain documents are not included in the supplementary record sought to be filed as they were in the superior court file and could not be obtained at the time of drawing the application as the said superior court file was already in this Court. It was also supported by an affidavit sworn by Butt.

Earlier these two applications came up for hearing on more than two occasions before this Court differently constituted. On two of these occasions, specifically on 3rd June 2010 and on 21st January 2011, the Court made orders that the two applications be listed for hearing on the same day. This was because, the result of the second application filed on 28th January 2010 could, to some extent affect the decision of the application dated 13th October, 2009. We do not however, think they were in any way consolidated, and therefore we heard the application filed on 28th January 2010 first. This ruling considers each application separately.

When the application dated 27th January 2010 and filed on 28th January 2010 was called out for hearing, neither the applicants nor their advocates were present in Court to prosecute it although they were duly served with the hearing notice for the hearing of the case on 28th when it was indeed heard. Mr. Gautama the learned counsel for the first respondent in that application asked the Court to dismiss the application. In the circumstances and as the applicants in that application were not present to prosecute the application, it cannot be sustained. It is dismissed pursuant to rule 56 (1) of this Court’s Rules and costs of the application are awarded to the first respondent in that application Mistry Valji Naran Mulji.

As to the Notice of Motion dated and filed on 16th October 2009, the affidavit in support of it which was not challenged states in brief that the appellants in Civil Appeal No. 230 of 2009 sought to be struck out, who are the respondents in the notice of motion, filed an appeal being Civil Appeal No. NAI 274 of 2005 against the decision of Mwera, J. delivered on 29th July 2005 but that appeal was struck out for want of leave to appeal. This Court’s ruling striking it out was dated and delivered on 27th July 2007. The respondents/appellants then moved to the High Court and obtained leave to appeal and leave to file a record of appeal out of time and thereafter sought leave of this Court to file a notice of appeal out of time but that application was dismissed vide this Court’s Ruling dated and delivered on 13th February, 2009. The respondents/appellants thereafter went back to the High Court and obtained an order for extension of time to file another notice of appeal. That was the order used as the basis for commencing the appeal sought to be struck out. The applicants in this notice of motion, who are the respondents in the appeal, contend that that was not proper as a similar application had been refused by this Court and thus the High Court had no jurisdiction to grant it as that went against the doctrine of res judicata. Mr. Gautama, for the applicant, in his submissions urges us to allow the application and strike out the appeal. Further and in any event, the record of appeal before us does not contain vital documents namely, the plaint, amended plaint and defences filed in the superior court which as at the time the appeal was filed, were primary documents and their omission from the record of appeal was fatal.

In our view, even though, the omission to annex the plaint, amended plaint and defences namely pleadings was as at the time the appeal was filed, fatal, that is no longer the case following amendments to the Appellate Jurisdiction Act and to this Court’s Rules and we would have allowed the respondents/appellants to annex them by way of a supplementary record of appeal even after dismissing the main application for lack of appearance. However, as to whether the record of appeal is valid in law, we think Mr. Gautama is plainly right that this Court had struck out the first appeal on grounds that it was incompetent for lack of leave to file it and also declined to grant leave to institute an appeal. Furthermore, an application for extension of time to file and serve a record of appeal had been declined by a single Judge of this Court and a reference to full Court was dismissed thus confirming a single Judge’s refusal. It followed therefore that the respondents/appellants had no business going back to the High Court to obtain another order for extension of time to file a notice of appeal and basing the appeal on such order. The matter had been a baby of this Court and this Court had made a decision on it. The High Court’s order for extension of time made after this Court’s decision was, in our view, made without jurisdiction. Thus the appeal is clearly incompetent as it was not based on a valid notice of appeal. This is a matter which, in our view, is incurable even by the application of the overriding objective under sections 3A and 3B of the Appellate Jurisdiction Act for it goes to the root of the matter; namely, whether the notice of appeal upon which the appeal is premised is valid and we have held that it was not. That is a matter of law and is not a matter of technicality which can be cured.

In short, the notice of motion succeeds. Civil Appeal No.230 of 2009filed on 18th September, 2009 is hereby struck out with costs of the appeal and costs of this notice of motion to the applicant in the motion.

Dated and delivered at Mombasa this 7th day of October, 2011.

S.O. BOSIRE

….……………………

JUDGE OF APPEAL

P.N. WAKI

……….……………….

JUDGE OF APPEAL

J.W. ONYANGO OTIENO

………………………..

JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR