[2022] KEHC 3033 (KLR)

Mutuku & 2 others v Kahiga & 2 others (Miscellaneous Application E044 of 2022) [2022] KEHC 3033 (KLR) (5 May 2022) (Ruling)

Neutral citation: [2022] KEHC 3033 (KLR)

Republic of Kenya

In the High Court at Machakos

Miscellaneous Application E044 of 2022

GV Odunga, J

May 5, 2022

Between

Augustus Mutuku

1st Applicant

Christopher Wambugu Gachugi

2nd Applicant

Brayan Mwangi t/a Vintage Auctioneers

3rd Applicant

and

Rose Waithira Kahiga t/a Rigid Auctioneers

1st Respondent

Momentum Credit Limited

2nd Respondent

Stephen Kamamia

3rd Respondent

Ruling

1. The applicants herein instituted these proceedings by way of Miscellaneous Application dated 25th February, 2022 which application was amended on 18th March, 2022. The said application was expressed to be brought pursuant to Article 165(6) and (7) of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act, Order 45 and 51 of the Civil Procedure Rules and any other enabling provisions of the law.

2. In these proceedings, the substantive relief sought by the Applicants are orders for unconditional setting aside of the orders of 15th December, 2021 in Machakos CMCC No. 13 of 2008 by the Chief Magistrate Court Machakos and those of 25th January, 2021 (sic) in Milimani Commercial Court Misc. Application No. E075 of 2022 and all the consequential orders thereto. The applicants consequently seek to have the motor vehicle reg. no. KCV 522 unconditionally released to the 2nd Applicant.

3. According to the 1st applicant, he is the decree holder in Machakos CMCC No. 11 of 2018 which was part of a series that comprised of two other matters viz. Machakos CMCC Nos. 12 and 13 of 2013 in which judgement was entered against the 1st Respondent on 19th August, 2016. It was deposed that the said judgement has neither been appealed against nor set aside.

4. Following the entry of the judgement, the 1st Respondent/judgement debtor ‘s whereabouts were unknown until late 2021 when his assets were identified for auction. However, in an attempt to avoid settling the decree, the 1st Respondent in an application filed before the Machakos CM’s Court tin CMCC No. 11 of 2008 sought orders staying the execution but the said application was withdrawn on 15th December, 2021. The judgement however sought in Machakos CMCC No. 13 of 2008 similar orders to the ones sought in the withdrawn application wherein ex parte orders were granted.

5. However, the 1st applicant had, in the meantime, through the 3rd applicant, proclaimed the judgement debtor’s motor vehicle reg. no. KCV 522M and proceeded to sell the same to the 2nd Applicant and the vehicle was released to the 2nd Applicant. However, based on the said ex parte orders obtained by the 2nd and 3rd Respondents by non-disclosure of material facts, the Milimani Commercial Court proceeded to issue orders to reposes the said vehicle alleging that the same was security for loan facility purportedly due to the default of the 1st Respondent and the said granted the said orders. As a result, the said vehicle was repossessed.

6. The applicants lamented that the Respondents were using the court process in a manner to defeat justice and avoid settling the decretal sum hence the said orders were illegal as the orders were meant to defeat the execution of the decree issued in Machakos CMCC No. 11, 12 and 13 of 2008.

7. In response to the application, the 3rd Respondent contended while admitting the existence of the previous proceedings averred that he was unaware of the judgment and only became aware of the same when execution was threatened. According to him, the advocate handling the matter on his behalf through his insurance company did not update him on the progress of the matter. . He was however aware that his insurer had commenc3md negotiations with the advocate of the decree holder regarding settlement of the decretal sum by instalments and had in cat paid part thereof but the decree holder’s advocates were not forthright in such negotiations.

8. It was contended that since the 2nd and 3rd Respondents were not parties to the proceedings, they ought to commence their own proceedings. According to the 3rd Respondent, the instant application is scandalous, vexatious, frivolous and an abuse of the court process.

Determination. 9. I have considered the issues raised herein. As stated at the beginning of this ruling, these proceedings have been commenced as miscellaneous application.

10. Whereas it is appreciated that in appropriate cases, proceedings may properly be commenced in that manner, I, however, 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 particularly those that may well call for viva voce evidence to be taken.

11. In this case as regards the orders made in Machakos CMCC No. 13 of 2008, it is clear that the said application was made to stay the execution process. According to the applicants, the 3rd Respondent obtained ex parte orders of stay therein. Two issues arise therefrom. Firstly, is whether a party aggrieved by an ex parte order can properly challenge the same in separate proceedings as the applicants have purported to do herein.

12. Order 50 rule 3 of the Civil Procedure Rules provides that:No motion shall be made without notice to the parties affected thereby: Provided, however, that the court, if satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order ex parte upon such terms as to costs or otherwise, and subject to such undertaking, if any, as to the court seems just, and any party affected by such order may move to set it aside. [Underlining added].

13. Similarly, rule 15 of the said order provides that the court may set aside an order made ex parte.

14. It is therefore clear that there is a remedy provided for setting aside ex parte orders. In this case the Applicants have not shown the reason why they did not seek to have the said order set aside or opposing the extension thereof at the inter partes hearing. As has been held time without a number, where a statute has provided a remedy to a party, this Court must exercise restraint and first give an opportunity to the relevant bodies or organs to deal with the dispute as provided in the relevant statute. 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.”

15. Secondly, as the issue for determination revolves around execution, Section 34(1) of the Civil Procedure Act provides as hereunder: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.

16. In my view the challenge to the order issued on 15th December, 2021 in CMCC No. 13 of 2008 fall within the four corners of section 34(1) aforesaid and ought to be determined in the suit in which the decree was passed. That Court is the trial Court.

17. That was the position 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.”

18. As regards the orders issued in Milimani Commercial Court Misc. Application No. E075 of 2022 dated 25th January, 2022, nothing prevents the applicant from seeking to have the same set aside as well. That Court both in the exercise of its inherent powers and powers of review is entitled, if properly satisfied, to set aside the said orders.

19. In the premises, I find these proceedings incompetent and I hereby strike the same.

20. There will be no order as to costs.

21. It is so ordered.

READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 5TH DAY OF MAY, 2022G V ODUNGAJUDGEDelivered the presence of:Mr Nzei for the ApplicantCA SusanHCMA E044. 22 Page 2