[2022] KEHC 10986 (KLR)

Munga v Munga (Civil Appeal 172 of 2019) [2022] KEHC 10986 (KLR) (20 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10986 (KLR)

Republic of Kenya

In the High Court at Kiambu

Civil Appeal 172 of 2019

MM Kasango, J

June 20, 2022

Between

Geoffey Njuguna Munga

Plaintiff

and

Geoffrey Karongo Munga

Respondent

((Being an appeal from the Ruling in Chief Magistrate’s Court at Kiambu (G. Omodho, SRM) in respect of the Notice of Motion Application dated 10th April, 2019 in Civil Case No. 265 of 2016))

Judgment

1. This appeal arises from a Ruling of Hon. G. Omodho, SRM dated 25th October, 2019. By that Ruling, the learned Magistrate dismissed the application of Geoffrey Njuguna Munga (hereinafter Njuguna) dated 10th April, 2019. Njuguna by that application (hereafter the subject application) sought the setting aside of the dismissal of his suit that is, Kiambu Chief Magistrate’s Court Civil Caser No. 265 of 2016. That case was dismissed on 5th August, 2019 for want of prosecution.

2. The trial court on considering the subject application, the affidavit evidence and submissions it made a finding that Njuguna and Geoffrey Karongo Munga(hereafter Karongo) had other cases before the Kiambu Chief Magistrate’s being Civil Case NO. 92 of 2010 and before the Milimani Environment and Land Court being Case No. 73 of 2018, and that those cases were duplication of the case where the subject application was filed.

3. The trial court while agreeing with the submissions made by Karongo cited Section 6 of the Civil Procedure Act and held that the case sought to be reinstated by the subject application ought to be litigated in the existing suits.

ANALYSIS 4. An appeal before this Court from Magistrate’s court decision is by way of retrial. This Court in such an appeal is expected to reconsider the evidence, evaluate itself and draw its own conclusion. See the case Gitobu Imanyara & 2othersvs. Attorney General (2016) eKLR.

5. It is also important to note that the trial court’s decision was an exercise of judicial discretion. An appellate court needs to tread carefully before interfering with that exercise of discretion. This is what was stated in the case United India Insurance Co. Ltd Vs. East Africa Underwriters (kenya) Ltd (1985) EA by Madan, JA (as he then was), thus:-“The Court of Appeal will not interfere with a discretionary decision of the Judge appealed from simply on the ground that its members, if sitting at first instance, would or might have given different weight to that given by the Judge to the various factors in the case. The Court of Appeal is only entitled to interfere if one or more of the following matters are established: first, that the Judge misdirected himself in law; secondly, that he misapprehended the facts; thirdly, that he took account of considerations of which he should not have taken account; fourthly, that he failed to take account of considerations of which he should have taken account, or fifthly, that his decision, albeit a discretionary one, is plainly wrong.”

6. The background of the subject application was that, the suit where that subject application was filed was dismissed for want of prosecution on 18th May, 2018. The plaint in that suit was filed on 18th July, 2016. Although Karongo’s defence does not bear a court stamp, I discern from the court receipt that it was filed on 29th July, 2016.

7. I have perused the trial court’s file and the record of appeal but I have been unable to trace the notice served on the parties, for the parties more particularly, Njuguna to show cause why that suit should not be dismissed for want of prosecution. The trial court’s proceedings of 18th May, 2018 simply indicated:-“Court: No appearance for parties.Dismissed under order 17 for want of prosecution.”

8. The rule of natural justice “audi alteram partem”, hear the other party was undoubtedly breached by the trial court when it failed to confirm that the parties, and more particularly Njuguna were served with a hearing notice to show cause why the suit should not be dismissed for want of prosecution. The ingredients of fairness that must guide any body making decision and much more courts of law, are amongst the others that a person must be given adequate opportunity to present their case. The above right is well discussed in the case of Republic Vs. Naitonal Land Commission & 2 OthersEx ParteArchidiocesofNairobi Kenya Registered Trustee (st. Joseph Mukasa Catholic Church Kahawa West (2018) eKLR thus:-“In Egal Mohamed Osman Vs. Inspector General of Police & 3 Others [2015] eKLR at page 7 the Court at the time referred to The Management of Committee Of Makondo Primary School And Another v Uganda National Examination Board, HC Civil Misc Application No.18 of 2010, the Ugandan Supreme Court stated as follows regarding the rules of natural justice:“It is a cardinal rule of natural justice that no one should be condemned unheard. Natural justice is not a creature of humankind. It was ordained by the divine hand of the Lord God hence the rules enjoy superiority over all laws made by humankind and that any law that contravenes or offends against any of the rules of natural justice, is null and void and of no effect. The rule as captured in the Latin Phrase 'audi alteram partem' literally translates into 'hear the parties in turn', and has been appropriately paraphrased as 'do not condemn anyone unheard'. This means a person against whom there is a complaint must be given a just and fair hearing.”

9. The fact Njuguna and Karonga were not given an opportunity to be heard before the suit was dismissed for want of prosecution suffices to allow the present appeal.

10. Order 17 Rule 2 of the Civil Procedure Ruleshas built into it the requirement that before the hearing of notice to show cause why a suit should not be dismissed for want of prosecution, a notice of that hearing must have been given to the parties. The following are the provisions of Order 17 Rule 2:-“2. (1) In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit.(2) If cause is shown to the satisfaction of the court, it may make such orders as it thinks fit to obtain expeditious hearing of the suit.(3) Any party to the suit may apply for its dismissal as provided in sub-rule 1. (4) The court may dismiss the suit for non-compliance with any direction given under this Order.”

11. The Court of Appeal considered Order 17 Rule 2 and eloquently stated in the case Thika Coffee Mills Limited Vs. Gakuyu Farmers Co-operative Society & 2 Others (Civil appeal NO. 281 of 2019) [2022] KECA 160 (KLR) Commercial and Tax (18 February, 2022) judgment thus:-“The rationale behind Order 17 rule 2 is that suits should be heard and determined expeditiously, for as is often said, justice delayed is justice denied. In Fitzpatrick Vs. Batger & Co. Ltd [1967] 2 ALL ER 657, Salmon L.J. expressed the proposition as follows: It is of the greatest importance in the interests of justice that these actions should be brought to trial with reasonable expedition. It is not in the interests of defendants that this should be done, but it is perhaps even more in the interests of “plaintiffs themselves...In Eliud Munyua Mutungi vs. Francis Murerwa[2014] eKLR, this Court reiterated that:-‘The power of the court to dismiss a suit for want of prosecution is a discretionary power, but which should be exercised judicially. In Allen -vs- Sir Alfred Mc. Alpine & Sons(1968) ALL ER, the Court of Appeal of England established the following as principles governing applications for dismissal for want of prosecution:-a.the delay is inordinate;b.the inordinate delay is inexcusable;c.or the defendant is likely to be prejudiced by the delay.’”

12. The trial court erred in failing to consider the issue before it, that is, reinstatement of dismissed suit. It was erroneous to consider that issue in the context of the other existing suit between the parties. That issue of the other suits had no bearing in the prayer for reinstatement of the dismissed suit. In emphasising the existence of the other suits, as a reason not to reinstate the dismissed suit may have been prompted by Karongo in his grounds of opposition to the subject application. Those grounds of opposition of Karongo contained factual arguments which were not supported by an affidavit. Those grounds, which include the ground about the existence of other suits, had no weight in law and ought not to have been considered by the trial court. The trial court therefore fell in error.

13. Even if the grounds of opposition on other suits was proved through an affidavit, in the documents attached to Njuguna’s affidavits, I was able to note that in the case Kiambu Chief Magistrate Court Civil Case No. 92 of 2010 that a judgment in that case dated 20th April, 2016 ordered Njuguna within 21 days to remove structures on his land and thereby permit a road to be created. That judgment stated that Karongo had liberty in default of Njuguna pulling down the structures to demolish the said structures. It is alleged in the dismissed suit that, Karongo undertook the demolition of those structures without following the laid down procedure. Njuguna through the dismissed suit pleads that the demolition was not carried by an officer of the court. Indeed, execution of court orders are undertaken by officers of the court. See the case Margaret Auma Omotto Vs. Maria Were Oduor & Another (2014) eKLR as follows:-“The 2nd Respondent, as the auctioneers who carried out the attachment and sale without abiding by the provisions of Section 13 of the Auctioneers Act, are officers of the court as held by the court of Appeal in National Bank of Kenya Ltd –vs- Jolly Family Stores & Another [2005] eKLR which it stated;‘...auctioneers, while executing decrees of the courts, are indeed agents of the court. It is from the courts which gives them authority to execute, for example by the different modes of warrants and the same court can order them to stop the execution process.’’

14. Njuguna through the dismissed suit pleaded that the demolition by Karongo was wrongful and sought compensation for the damage he incurred.

15. Such a claim by Njuguna could not be considered in Kiambu Civil Case No. 92 of 2010 since that case No. 92 of 2010 had been concluded when judgment was delivered. Njuguna’s claim in the dismissed suit requires determination whether the demolition by Karongo was wrongful and if so, whether Njuguna is entitled to damages.

16. That is the reason I find and hold that the trial court erred to find that the claim in the dismissed suit could be considered in the pre-existing suits.

17. In view of the above, Njuguna’s appeal succeeds.

18. The Ruling and Order of Hon. G. Omodho of 25th October, 2019 is set aside and is substituted with an order granting prayers of the Notice of Motion dated 10th April, 2019 No. 1, 2, 3 and 4.

19. In respect to prayer for amendment of the plaint, Njuguna shall file and serve at Kiambu Chief Magistrate’s Court the amended plaint within 21 days from today’s date.

20. Geoffrey Njuguna Munga is granted costs of the Notice of Motion dated 10th April, 2019 and the costs of this appeal.

21. Orders accordingly.

JUDGMENT DATED AND DELIVERED AT KIAMBU THIS 20TH DAY OF JUNE, 2022. MARY KASANGOJUDGECoram:Court Assistant : MouriceFor the Appellant: - Lawrence Munge NjugunaFor the Respondent : N/ACOURTJudgment delivered virtually.MARY KASANGOJUDGE