https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12866

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NYERI** **HIGH COURT CIVIL APPEAL CASE NO. E033 OF 2025** **NEW RAFIKI MACHINERY SALES &** **SERVICES LIMITED……………………………………1ST APPELLANT** **SAID ABDUL REHMAN……………………………..2ND APPELLANT** **VERSUS** **MWANGI MUTAHI RUGA……………………………RESPONDENT** **JUDGEMENT** 1. The Appellant herein **NEW RAFIKI MACHINERY SALES & SERVICES LTD** (the 1st Appellant) and **SAID ABDUL REHMAN** (2nd Appellant) filed in this Court the Memorandum of Appeal dated **10th June 2025** seeking the following orders;- **“(a) THAT this appeal against the Ruling of the Learned Trial Magistrate delivered on 27th May 2025 be allowed in its entirety.** **(b) THAT the said ruling of the learned trial Magistrate be varied and/or set aside.** **(c) THAT an order be made that the application dated 23rd** **January 2025 be reinstated for hearing by a different bench.** **(d) THAT alternatively, an order be made allowing the application dated 23rd January 2025.** **(e) THAT the Appellants be awarded costs of this appeal and the court belod.** **(e) THAT this Honourable Court grants any other or further relief it deems fit or just.”** 2. The Respondent **MWANGI MUTAHI RUGA** opposed the appeal. The matter was canvassed by way of written submissions. The Appellants filed the written submissions dated **15th February 2026** whilst the Respondent relied upon written submissions which were undated. **BACKGROUND** 3. This is a matter which has had a protracted history in the courts. The original suit **Nyeri CMCC 819 of 2006 JOHNSON KAREITHI** **(suing as legal representative to the estate of David Kareithi Njogu -VS- NEW RAFIKI MACHINERY and WILFRED GITAU KUNGU**, a suit which arose from fatal injuries sustained by the Deceased in a road traffic accident. In that case the court entered judgment in favour of the plaintiff against the Defendant for a sum of **Kshs. 456,300**. 4. In a second suit being **Nyeri Misc 17 of 2017** the Respondent herein **Mwangi Mutahi Ruga** sued the Appellants. The Court entered judgment in favour of the Applicant against the Respondent for an amount of **Kshs. 6,000,000**. 5. Being dissatisfied with the above decision the Respondents filed an appeal in the High Court being **Nyeri HCCA No. 40 of 2017** which appeal was dismissed on **4th July 2019**. 6. The Respondents then moved to the Court of Appeal vide **Nyeri CACA No. 228 of 2019** which appeal was also dismissed on **19th September 2025**. 7. The present appeal relates to a Ruling delivered by **Hon. V S KOSKEI Senior Resident Magistrate in Nyeri Misc 17 of 2017**. In that matter the Respondent who was the decree-holder had commenced the process of execution to recover the decretal sum owed to him and had instructed **M/S GALAXY AUCTIONEERS** who proceeded to attach the property of the applicants to recover a sum of **kshs**. **6,643,615**. The Applicants objected to the attachment of certain vehicles on grounds that the same belonged to third parties. 8. On **27th May 2025** the learned trial magistrate delivered her Ruling which she made the following orders;- **1. The Proclamation Notice dated 19th February 2025 attaching:** **a) M/V REG. NO. KBN 379 P BELONGING TO DUNCAN MUNGAI GITHIRE** **b) M/V REG. NO. KBJ 878W BELONGING TO DENNIS WEKESA MECHUMO** **c) M/V REG. NO. KAA 704 P BELONING TO JACOB KITHINJI PETERS** **d) M/V REG. NO. KAL 466 D BELONGING TO CHOPRA TANJA.** **is set aside and all the motor vehicles be released to the Applicants unconditionally.** **2. The Respondent/Decree holder is at liberty to proceed with execution with other property attached by the auctioneer and not objected to by the applicants or** **to attach afresh.** **3. There shall be no orders as to costs considering the protracted nature of this case and the outstanding decretal sum of Kshs. 6,643,615/=.** **4. The court suo moto dismisses the application dated 23/1/2025 seeking to set aside the judgment of the court for lack of service since this is a matter in which it has been argued all the way to the High Court and the decision of the trial court was affirmed. Thus the court is functus officio and cannot entertain such applications.** **5. Looking at the history of the matter, litigation has to come to an end and the applicants have been barred from filing any other application without leave of the court but applications relating to execution will be herd and determined.** 9. Being dissatisfied with that Ruling the Appellants filed the present appeal which is premised upon the following grounds:- **“1. THAT the Learned Trial Magistrate erred in law and in fact in dismissing the application dated 23rd January 2025 suo moto without according the Appellants the right to be heard**. **2. THAT the learned Trial Magistrate erred in law and fact in dismissing the application dated 23rd January, 2025 despite it being unopposed.** **3. THAT the learned Trial Magistrate erred in law and in fact in failing to give adequate reasons for dismissing the said application.** **4. THAT the learned Trial Magistrate erred in law in acting contrary to the principles of natural justice, particularly the right to be heard**.” **ANALYSIS AND DETERMINATION** 10. I have carefully considered this Memorandum of Appeal, the record of Appeal as well as the submissions filed by both parties. Although the Appellants filed this appeal against the ruling of **27th May 2025,** the real bone of contention was the decision of the trial court to dismiss the application dated **23rd January 2025 ‘suo moto’**. In the application of **23rd January 2025** the applicant sought the following orders;- **“a) THAT the ex parte orders issued on 13th October 2017 be set aside.** **b) THAT this Honourable Court be pleased to stay of** **execution of the decree issued on 13th October, 2017** **together with all other consequential orders issued** **therein.** **c) THAT the 1st and 2nd Respondent be granted leave to file a** **response to the Application dated 11th May, 2017 and be** **herd on merits.”** 11. The Appellant argued that they were never served with that application and were not granted an opportunity to be heard on the same. 12. The record indicates that being dissatisfied with that ruling the Appellants field Nyeri **HCCA No. 40 of 2017**. The said appeal was dismissed by **Hon. Lady Justice Mshilla** on **4th July 2019** on grounds that having not paid the decretal sum the Applicants had come to Court with unclean hands. The appellants by this appeal now seek to have the ruling delivered on **9th October 2017** in Misc. Application **No 17 of 2017** set aside. 13. Through this appeal the Appellant is in effect seeking to relitigate a matter which has already been determined by the High Court. The question of the validity and/or the correctness of the ruling delivered on **9th October 2017** was canvassed before **Hon. Lady Justice Mshilla** and was determined vide the judgment delivered on **4th July 2017**. If the Appellants were dissatisfied with that decision then their remedy lay in moving to the Court of Appeal. This Court cannot sit in appeal over the decision of a court of concurrent jurisdiction. 14. Contrary to what has been submitted by the Appellants, the learned trial magistrate did give the reasons for her suo moto dismissal of the - She stated that the matter had already been handled in the High Court vide Civil Appeal No. 40 of 2017 and as such the Magistrate Court had no jurisdiction to hear the matter. 15. In the case of **DANIEL OTIENO ORACHA -VS- REPUBLIC [2019] eKLR,** **Hon. Lady Justice Aburith** observed thus:- **“14. The law abhors that practice of a judge sitting to review a judgment or decision of another judge of concurrent jurisdiction. Reduction of sentence could only be considered by the Court of Appeal or if this court was sitting on appeal of a judgment of the subordinate court or if the petitioner was seeking for resentence after exhausting appeal mechanisms and not otherwise……..16.** **The judgment of Abida Ali-Aroni J. made in accordance with the law has not been challenged. This court cannot sit on appeal of its own judgment or of court of** **concurrent competent jurisdiction when the Petitioner had an opportunity to ventilate his grievance before the Court of Appeal even if it was to challenge sentence alone. 17. Good governance demands that cases be handled procedurally in the right forum. This is because of the rule of the thumb that superior courts cannot sit in review/appeal over decisions of their peers of equal and competent jurisdiction much less those courts higher than themselves and that matters falling under the exclusive jurisdiction of Supreme Court under Article 163(3) cannot be dealt with by the High Court…………” [Own emphasis]** 16. In **Lawrence Kariuki Njeru vs Republic (2021) eKLR**, the court held that:- **“…………Further this court is bereft of Jurisdiction to review the said Judgment as doing so would be tantamount to sitting as an appellate court on the judgment of the Learned Judge and which act the law abhors. The petitioner ought to ventilate the issue** **on the resentencing and/or excessive sentence at the Court of Appeal…..”** 17. Accordingly I find that this court is ‘**functus officio’** and lacks jurisdiction in respect of **Misc App No. 17 of 2017**. In the circumstances this appeal is dismissed in its entirety. Costs are awarded to the Respondent. **Dated in Nyeri this 14th day of August 2026.** **……………………..** **MAUREEN A. ODERO** **JUDGE**