[2022] KEHC 16089 (KLR)

Njege v Careprime General Merchants Ltd & another (Civil Appeal 25 of 2020) [2022] KEHC 16089 (KLR) (Civ) (7 October 2022) (Judgment)

Neutral citation: [2022] KEHC 16089 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 25 of 2020

DO Chepkwony, J

October 7, 2022

Between

Paul Maina Njege

Appellant

and

Careprime General Merchants Ltd

1st Respondent

Rhoda Nyaruai Nderi

2nd Respondent

(Being an Appeal against the Ruling and Orders of the Chief Magistrate Court sitting in Nairobi issued by the Honourable Ofisi B. J. dated 19th December, 2019 in CMCC No.10491 of 2018)

Judgment

Background 1. The background of this appeal is that on August 23, 2019, the respondents filed a notice of motion application dated August 22, 2019, seeking for the following orders;a.That this application be certified urgent and service thereof be dispensed with in the first instance and the matter be heard ex parte and on priority basis.b.That pending the inter partes hearing and determination of this application, the plaintiff/respondent herein, either in person or through his agents Dancy Auctioneers, their agents, servants and or employees be restrained in manner howsoever from attaching and/or selling any of the defendant/applicants’ property either by way of public auction and/or through private treaty.c.That pending the interpartes hearing and determination of the main suit, the Plaintiff/Respondent herein, either in person or through his agents namely Dancy Auctioneers, their agents, servants and or employees be restrained in any manner howsoever from attaching and/or selling any of the defendant/applicants’ property either by way of public auction and/or through private treaty.d.That the Officer Commanding Station (OCS) Central police station to ensure compliance of the orders.e.That the honourable court be pleased to set aside the judgment in the instant suit and pleased to set the matter for hearing.f.The costs of this application be borne by the defendant/respondent.g.Any other orders that court may deem fit.

2. The application was premised on the grounds on the face of the application and supported by the affidavit of the 2nd respondent Rhoda Nyaruai Nderi sworn on August 22, 2019.

3. The appellant opposed the application vide a replying affidavit sworn by Paul Maina Njege on August 29, 2019.

4. In the affidavit, the appellant deposed that judgment in default was entered against the respondents on February 21, 2019 and a notice of entry of judgment was served upon the respondents’ advocates on March 15, 2019.

5. That before execution could be commenced, the respondents filed an application dated March 19, 2019 seeking for the following ordersa.Stay execution of the judgment entered on February 21, 2019;b.Leave to file defence and counterclaim out of time.

6. The appellant averred that the issues of legality and the procedure followed before the entry of the judgment being the issue of stay of execution of the judgment alongside that of leave to file the defence and counterclaim out of time, were canvassed before the trial court and determined by the ruling of the court delivered on June 14, 2019.

7. The order issued expressly stated that the Judgment had been set aside oncondition that the respondents paid throw away costs of Kshs 5,000/= to the appellant within 30 days and the draft defence and counterclaim to be filed within 14 days of June 14, 2019, failure to which the orders setting aside the judgment would have lapsed.

8. The respondents did not comply with the terms of the order as they did not file a defence within the 14 days or pay the throw away costs as ordered, thus the appellant’s advocate resumed the execution process.

9. The respondents filed a second application dated August 22, 2019 seeking for orders of;a.Stay of execution by way of an auction of the Judgment dated February 21, 2019 and its resulting decree.b.Setting aside the judgment dated February 21, 2019.

10. The orders sought were similar to those in the application dated March 19, 2019 and thus the appellant deposed that the latter application was res judicata and the court is barred by the rules of res-judicata from entertaining it.

11. The appellant further deposed that the court entered a regular judgment against the respondents and having already dealt with the application for stay of execution of the judgment, the court is therefore functus officio and devoid of jurisdiction to hear the application.

12. The parties were directed to canvass the application by way of written submissions, which both parties obligingly filed.

13. Upon considering the submissions filed by both counsel for the parties, the trial court delivered its ruling on December 19, 2019 allowing the application with the following conditions;a.The defence filed on July 15, 2019 is deemed as duly filed.b.Parties to fix pretrial dates at the registry.c.The applicant shall bear the auctioneers costs.d.The applicant shall bear the costs of this application.

14. The appellant being dissatisfied with the decision of honourable Ofisi B. J dated December 19, 2019 in CMCC No.10491 of 2018, filed this appeal vide a memorandum of appeal dated January 17, 2020 in court on even date citing the following grounds of appeal;a.That the learned magistrate erred in law and in fact in failing to consider that the issue raised in the application dated August 22, 2019 wereres judicata and the same had been conclusively addressed in the ruling delivered on June 14, 2019. b.That the learned magistrate erred in law and in fact by failing to hold that the court was functus officio.c.That the learned magistrate erred in law by conferring herself jurisdiction which she did not have.Reasons wherefore the appellants prays that: -1. The appeal be allowed;2. The ruling of the subordinate court be substituted with the following orders;-a.That the respondents’ application dated August 22, 2019 be dismissed with costs to the appellant.b.The appellant be awarded costs of the appeal.3. Any further order the court may think just and fair in the circumstances of the case.

15. On directions issued on February 17, 2022, parties were directed to canvass the appeal by way of written submissions and both parties filed their respective submissions in support and in opposition to the Appeal. The appellants submissions are dated March 30, 2022 while the respondents’ submissions are dated May 10, 2022. I have read through the said submissions in consideration of the appeal.

Analysis and Determination 16. I have given a careful consideration to the appellant’s appeal before court, the respective affidavits and submissions filed in support and opposition to the appeal and the cited authorities by the parties. I find that the issues arising for determination before this honourable court are;a.Whether the application dated August 22, 2019 was res judicata before the trial court; and,b.Whether the learned magistrate was functus officio in hearing the matter.

17. In determining the first issue of whether the application dated August 22, 2019 was res judicata before the trial court, the point of departure is section 7 of the Civil Procedure Act which provides that;“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”

18. In the case ofInvesco Assurance Company Limited & 2 Others v Auctioneers Licensing Board & Another; Kinyanjui Njuguna & Company Advocates & Another (Interested Parties) [2020]eKLR, stated that:-“The doctrine of res judicata is set out in section 7 of the Civil Procedure Act. The doctrine ousts the jurisdiction of a court to try any suit or issue which had been finally determined by a court of competent jurisdiction in a former suit involving the same parties or parties litigating under the same title.”The court went further to state that;“A close reading of section 7 of the Actreveals that for the bar of res judicata to be effectively raised and upheld, the party raising it must satisfy the doctrine’s five essential elements which are stipulated in conjunctive as opposed to disjunctive terms. The doctrine will apply only if it is proved that:i.The suit or issue raised was directly and substantially in issue in the former suit.ii.That the former suit was between the same party or parties under whom they or any of them claim.iii.That those parties were litigating under the same title.iv.That the issue in question was heard and finally determined in the former suit.v.That the court which heard and determined the issue was competent to try both the suit in which the issue was raised and the subsequent suit.”

19. Upon perusal of the record of appeal, it is noteworthy that the notice of motion application dated August 22, 2016 which is the subject of this appeal was majorly seeking for orders of injunction and an order setting aside the judgment in the lower court. The application dated March 19, 2019 was seeking for stay of execution and setting aside of the Judgment entered on February 21, 2019. It also had an alternative prayer for leave to file a defence and counter-claim out of time. The latter application dated March 19, 2019 was allowed vide the court’s ruling delivered on June 14, 2019. The interlocutory Judgment of February 21, 2019 was set aside on condition that the respondents pay throw away costs of Kshs 5,000/= within 30 days of the ruling, and the draft defence and counter claim be filed within 14 days from the date of ruling failure to which the order setting aside the judgment would lapse.

20. The respondents failed to comply with the orders of June 14, 2019, and when the appellant initiated the execution process, they filed a fresh application dated August 22, 2019, seeking for the execution of the decree to be stayed and Judgment to be set aside. In their affidavit in support of the said application, the respondents admitted that they were granted leave to file defence having been served within 14 days but failed to comply for reason that the court file could not be traced. They explained the difficulties they experienced in having the file located in the registry. And it was confirmed that the reason had been because the appellant had initiated the execution process by extracting a decree before the lapse of the timelines.

21. According to the appellant, the orders sought in the application dated August 22, 2019 are similar to those sought in the application dated March 19, 2019. His argument is that the ruling delivered on June 14, 2019 was never subjected to an appeal or review, hence it is presumed the same was satisfactory to all the parties and the issues of stay of execution, setting aside interlocutory Judgment and filing of a defence out of time had been conclusively determined by the lower court vide its ruling of June 14, 2019 and was then barred from entertaining the same issues in the application dated August 22, 2019.

22. The respondents contended that the trial court had jurisdiction to grant the orders sought by the respondent and relied on the case of Njoroge Kironyo & 3othersv Koronyo Njoroge (1976) eKLR, section 3A of the Civil Procedure Act and article 5091) and 159(2)(d) of the Constitutionto invoke the court’s inherent jurisdiction to guard aagainst leaning towards substantive justice so as to determine disputes fairly as between parties so as to achieve the ends of justice.

23. Having considered the arguments by both sides, I find that the trial court, in allowing the respondents application dated August 22, 2019 took into consideration the explanation given for non-compliance with its orders issued on June 12, 2019, and finding the same satisfactory and exercised discretionally power.(see the case of Shah v Mbogo & another[1967] EA 116). Also, the prayers in the application dated August 22, 2019 have not been shown to be res-judicata as they are seeking to stay different processes in the proceedings before the trial court hence the argument by the appellant cannot be sustained. The trial court was sufficiently clothed with jurisdiction and discretionary power to deal with both applications.

24. The next issue for determination is whether the trial Magistrate was functus officio in hearing the matter. The Court of appeal in the case of Telkom Kenya Limited v John Ochanda (Suing on his own behalf and on behalf of 996 former employees of Telkom Kenya Limited) [2014] eKLR, defined the same as follows;“Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon…The doctrine is not to be understood to bar any engagement by a court with a case that it has already decided or pronounced itself on. What it does bar is a merit-based decisional re-engagement with the case once final Judgment has been entered and a decree thereon issued.”

25. In the Black's Law Dictionary, Ninth Edition, it is defined as “havingperformed his or her office] (of an officer or official body) without further authority or legal competence because the duties and functions of the original commission have been fully accomplished.”

26. Clearly, although the principle prevents the re-opening of a case already determined, it does not stop a court from handling a matter already determined. It only bars engagement of court in a case heard and determined on merits. The purpose of this principle is to ensure finality of matters brought before court.

27. The Supreme Court of Kenya explained the doctrine of functus officio in Election Petitions Nos.3, 4 & 5,Raila Odinga & Others v IEBC & others[2013] eKLR cited with approval an excerpt from an article by Daniel Malan Pretorius, in “The Origins of the functus officio Doctrine, with Specific Reference to its Application in Administrative Law,” (2005) 122 SALJ 832:“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter.… The [principle] is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be revoked or varied by the decision-maker.”

28. In the instant appeal, I am of the view that the facts as presented do not meet the threshold set for a matter said to be functus officio for the simple reason that the matter was not heard and determined on merit before the trial court and Judgment rendered so as to fit within the principles of functus officio.

29. In the circumstances, it is my finding that the appeal is without merit and proceed to dismiss the same and direct that the matter proceeds for hearingand determination on merit before the trial court.

30. There shall be no orders as to costs. Each party to bears its own costs.It is so ordered.

JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 7TH DAY OF OCTOBER, 2022. D. O. CHEPKWONYJUDGEIn the presence of:M/S Wahito counsel holding brief for Mr. Nderitu for AppellantM/S Nambalu holding brief for Mr. Kibathi for RespondentCourt Assistant - Simon