[2023] KEHC 25888 (KLR)

Nyangara & another v Kaiya t/a Pavement Auctioneers (Civil Appeal E002 of 2023) [2023] KEHC 25888 (KLR) (21 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25888 (KLR)

Republic of Kenya

In the High Court at Kisumu

Civil Appeal E002 of 2023

RE Aburili, J

November 21, 2023

Between

Dennis Karani Nyangara

1st Appellant

Abel Omenta Nyaberi

2nd Appellant

and

Alfred Kaiya t/a Pavement Auctioneers

Respondent

(An appeal arising out of the Ruling of the Honourable G.C. Serem Ndombi in the Small Claims Court at Kisumu delivered on the 23rd December 2022 in Kisumu SCC No. E246 of 2022)

Judgment

Introduction 1. The respondent herein Alfred Kaiya trading as Pavement Auctioneers filed a statement of claim dated 25th November 2022 against the appellants in pursuit of his fees amounting to Kshs. 80,000 following an agreement between the parties herein in Kakamega CMCC E63 of 2021.

2. In response, the appellants’ filed a preliminary objection dated 30th November 2022 in which they raised the ground that the Court had no jurisdiction to hear and determine the claim pursuant to the provisions of section 34 of the Civil Procedure Act.

3. In the ruling which is impugned herein, the adjudicator held that the court had jurisdiction as the charges disputed were auctioneers fees that are not part of the decree and as such, the respondent was free to file a fresh suit in pursuit of the same.

4. Dissatisfied by the trial court’s ruling, the appellants filed their memorandum of appeal dated 6th January 2023 on the 9th January 2023, which appeal is predicated on the following grounds:i.That the magistrate/adjudicator erred in law by misdirecting and misinterpreting the provisions of section 34 of the Civil Procedure Act.ii.That the learned magistrate/adjudicator erred in law by declaring that she has jurisdiction to hear a dispute involving the execution of a decree passed by a different court.iii.That the learned magistrate/adjudicator erred in law by imposing herself the jurisdiction of the taxing master.iv.That the learned magistrate/adjudicator erred in law by imposing herself the jurisdiction to hear and determine a suit in which the auctioneer costs/fees had not been accessed by the taxing master.v.That the magistrate/adjudicator erred in law by failing to appreciate that the appellants would object to the auctioneer’s bill of cost if and when presented for assessment and thus the court lacked the capacity to comprehensively handle the dispute concerning auctioneer fees.

5. The parties filed submissions to canvass the appeal which has been fast tracked by this court.

The Appellants’ Submissions 6. It was submitted that the claim instituted by the respondent herein seeking for payment of Kshs. 80, 000/- as auctioneers’ fees relating to Kakamega CMCC E63 of 2021 and Nairobi CMCC 3133 of 2019 was a nullity as there was no proof of any agreement being made but most importantly, the same was supposed to be handled by the court that passed the decree as the same needed to be taxed accordingly.

7. The appellants submitted that the Small Claims Court lacked the requisite jurisdiction to entertain the suit before it for the simple reason that the Respondent was precluded by dint of the provisions of Section 34 of the Civil Procedure Act from filing a separate suit, to enforce or implement their bill which was yet to be taxed in that suit in which the execution arose from.

8. The appellants submitted that the trial court’s jurisdiction or lack of it was derived from Section 1 and 15 of the Small Claims Court Act. It was further submitted that the respondent/ auctioneer acted on behalf of the Decree Holder in the trial suit and therefore in the event of any dispute, including one of fees for executing warrants of attachment and sale, a Bill of Costs must be filed in the same suit in which he was instructed as enshrined in Section 34 of the Civil Procedure Act.

9. The appellants relied on the cases of DML v ML [2016] eKLR where the court held interalia that the law prohibits filing of a separate suit for execution purposes; Lavian Okere Watako v Asman Mombo Okwako & another [2015] eKLR, Kennedy Ooko t/a Ssebo Intel Co. Auctioneer v John Abich Ochanda [2021] eKLR where Justice R. Wendoh dismissed an appeal under section 34 of the Civil Procedure Act in which an auctioneer had filed a separate suit.

The Respondent’s Submissions 10. The respondent submitted that the subject matter and cause of action of the case in question and quoted to bring disparity, (sic) civil suit number 3133 of 2019 at Milimani commercial courts commercial court in Nairobi Small Claims Court at Kisumu in Kisumu SCCOM E246 of 2022, is different from the Small Claims Court at Kisumu in Kisumu SCCOM E246 of 2022 and therefore this ground of appeal was just a means to halt and stall the recourse of justice and finds no basis in this suit in any way whatsoever.

11. It was further submitted that the memorandum of appeal dated 6th of January, 2023 that purported that the subject matter of the suit in the Small Claims Court at Kisumu in Kisumu SCCOM E246 of 2022 was the same as or and involved execution of the decree passed in civil suit number 3133 of 2019 at Milimani commercial courts commercial court in Nairobi was just a flailing attempt to misguide the court.

12. The respondent submitted that even though the above referred case was the parent source of the auctioneer’s authority to act, the proceeding (sic) auctioneer’s fees of Kshs. Eighty Thousand and interest accrued cannot be termed as part of execution of decree dated 16th December, 2020 as the two were not one and the same. Reliance was placed on the case of Kuronya Auctioneers v Maurice Odhoch & another [2003] eKLR.

13. It was submitted that the appellants raised a new point of law upon appeal not canvassed in the preceding ruling specifically that the points raised for determination in paragraphs 3, 4, and 5 were not canvassed in the ruling being appealed which only raised the question on section 34 of the Civil Procedure Act of which the appellant was dissatisfied with. The respondent relied on the case of Eustace N Paul & 3 others v Juntus Paul Njeru Kangicu [2021] eKLR where it was held interalia that the principles to include that all grounds of appeal must arise from issues that were sufficiently pleaded, canvassed, raised or succinctly made issues at the trial; that the point sought to be introduced must be consistent with the applicant’s case as conducted in the trial court, not changing it into a totally different case.

14. The respondent submitted that the instant appeal lacked basis in law as there was no error in law in the ruling of adjudicator and as such the instant appeal ought to be dismissed.

Analysis and Determination 15. This being a first appeal, this court is duty bound to delve at some length into factual details and revisit the facts as presented in the trial court, analyse the same and arrive at its own independent conclusions, but always remembering that, the trial court had the advantage of seeing the witnesses testify.

16. It is clear that the determination of the appeal revolves around the question whether the trial adjudicator had jurisdiction to hear and determine the respondents’ claim and therefore that is the issue that I shall determine here since the suit did not proceed to full hearing.

17. Section 34 of the Civil Procedure Rules provides that all questions arising out of or relating to execution shall be determined in the same suit and not by a separate suit. The Section is reproduced below.34. Questions to be determined by court executing decree(1)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.(2)The court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit, or a suit as a proceeding, and may, if necessary, order payment of any additional court fees.(3)Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the court.Explanation. — For the purposes of this section, a plaintiff whose suit has been dismissed, and a defendant against whom a suit has been dismissed, are parties to the suit.

18. On the application of Section 34 of the Civil Procedure Rules, the position was articulated well in the Court of Appeal decision in Kuronya Auctioneers v Maurice O. Odhoch & Another (supra) as follows:“Section 34 allows the parties to a suit in which the decree was passed to have determined, in that suit, all questions relating to execution, discharge or satisfaction of the decree. It does not talk of damages payable to a person against whom a decree is executed when he is not the judgment — debtor. For the purposes of compensation for the torts of wrongful execution or trespass the wronged party cannot be said to be a party to the original suit as such a claim does not relate to execution, discharge, or satisfaction of the decree. The first ground of appeal therefore fails."

19. Further, Section 26 of the Auctioneers Act is clear that a party who suffers any special or general damages out of the unlawful or improper exercise of any power by a licenced auctioneer is entitled to recover any damages directly suffered from the Auctioneer by action.

20. Action is defined in the Interpretation and General Provisions Act to mean “any civil proceedings in a court and includes any suit as defined in Section 2 of the Civil Procedure Act.”

21. This means that Section 26 of the Auctioneers Act contemplates a separate suit against the Auctioneer by the party who has suffered special or general damages as a consequence of the unlawful or improper exercise of the powers of an Auctioneer as granted in the Act.

22. Section 34 is further clear that it contemplates only situations where parties are the same, as was in the case of Governors Balloon Safaris Limited v Attorney General & 2 Others (2014) eKLR and not a case like the present one where the parties sued are different, the cause of action different and the prayers sought by the respondent different from the earlier suit giving rise to the cause of action herein.

23. For the foregoing reasons, I find the preliminary objection to raised to have been devoid of any merit and hold that the Adjudicator did not err in dismissing the same. I uphold the ruling of the Adjudicator and dismiss this appeal.

24. As the main claim is still to be determined, owing to this appeal, I hereby order that each party bear their own costs of this appeal.

25. I so order.

26. The lower court file to be returned forthwith accompanied by a copy of this judgment and decree.

27. File closed.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 21STDAY OF NOVEMBER, 2023R.E. ABURILIJUDGE