[2023] KEHC 26270 (KLR)

Obegi v Onani (Civil Appeal 184 of 2023) [2023] KEHC 26270 (KLR) (6 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26270 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Appeal 184 of 2023

HM Nyaga, J

December 6, 2023

Between

Dominic Obegi

Appellant

and

Jackson Odhiambo Onani

Respondent

(Being an Appeal from the Judgement of Hon. D.M. Macharia R.M in Nakuru Small Claims Case no. E187 of 2023 delivered on 26th July,2023)

Judgment

1. The Respondent, vide statement of claim dated 1st April,2023, commenced suit against the Appellant before the Small Claims Court. His claim was that on 26th November,2022 he entered into a consent agreement referring to Motor Vehicle Sale agreement dated 21st May,2022 to have the sale agreement of the Motor Vehicle Registration Number KBK 443 V, make Mitsubishi Truck white in colour cancelled and the said Motor Vehicle returned to the vendor.

2. He pleaded that the Appellant breached the consent agreement dated 26th November 2022 by repossessing the subject Motor Vehicle through a third party on 25th March,2023 without approaching any legal forum as was dictated by the said agreement.

3. He prayed for judgement, compensation, costs of the claim and the Appellant to be ordered to immediately return the subject motor vehicle to him in the condition it was prior to illegal possession.

4. The Appellant vide his response to the statement of claim dated 11th April,2023 denied the Respondent’s claim and asserted that it is the respondent who owed him Ksh. 900,000/= and that according to the agreement dated 26th November, 2022, the claimant paid him a sum of Ksh. 1million and was to repay the remaining Ksh. 900,000/= in monthly installments of Ksh. 45,000/=. He counterclaimed against the respondent for a sum of Ksh. 900,000/=. He thus prayed that the claimant’s claim’s be dismissed and judgement entered in his favour in the sum of Ksh. 900,000/= plus costs and interests of the suit. However, during hearing, the Appellant withdrew his counterclaim.

5. After full trial, the adjudicator found that the respondent breached the agreement dated 26th November 2011 by repossessing the suit motor vehicle without a court order. He therefore ordered the Appellant to pursue any amounts owed through a lawful process and granted the Respondent herein costs of the claim.

6. Dissatisfied with the said judgement, the Appellant filed the instant Memorandum of Appeal dated 2nd August,2023 raising the following grounds: -i.The Learned Trial Magistrate erred both in law and fact by conferring upon himself jurisdiction that was beyond his pecuniary jurisdiction.ii.The Learned Trial Magistrate erred both in law and fact by issuing an order for release of the subject motor vehicle whose value is Ksh. 2,500,000/= which value is beyond his pecuniary jurisdiction.iii.The Learned Trial Magistrate erred both in law and fact by enforcing the consent agreement dated 26th November,2022 against the appellant without considering that the respondent too was in breach of his obligation under the same contract.iv.The Learned Trial Magistrate erred both in law and fact by issuing an order for the release of the subject motor vehicle valued at Ksh. 2,500,000/= yet from the body of the statement of claim the claimant’s claim was for a sum of Ksh. 900,000/=v.The Learned Trial Magistrate erred both in law and fact by faulting the respondent for not seeking legal redress as provided in the consent agreement without faulting the claimant for pursuing legal redress which was not provided in the contract.

7. The Appellant thus prayed for orders: -i.That this appeal be allowed.ii.The Judgement, Decree and any consequential orders issued by Hon. D.M Macharia R.M be set aside.iii.That this Honourable court be pleased to enforce the agreement dated 26th November,2022 for each party to perform their obligation under the agreement.iv.That costs be awarded to the appellant.

8. The Appeal was urged through written submissions.

Appellant’s Submissions 9. The Appellant submitted that parties were bound by the contract dated 26th November,2022 which was specific that the respondent do refund the balance of Ksh. 900,000/= in monthly installments of Ksh. 45,000/= per month and in default, the appellant seeks legal redress.

10. The appellant argued that the fact that it was the respondent herein who moved to court in SCCM 187/23 did not bar the court from enforcing the terms of the contract as expressed in the contract dated 26th November,2022.

11. He argued that the value of the subject motor vehicle can be determined from the first agreement dated 21. 5.2022 in which the subject motor vehicle was being sold at Ksh. 2,500,000/= and as such the small claims court under Section 12(3) of the Small Claims Act lacked pecuniary jurisdiction to hear and determine the matter.

Respondent’s Submissions 12. The Respondent submitted that repossession of the suit motor vehicle contravened the terms of the consent as it was done without a court order. To buttress his submissions, he cited the case of David Karobia Kiiru vs Laverage Company Ltd [2017] eKLR where the court quoted the case of Simon Muiruri Wanjohi vs Resma Commercial Agencies Nakuru HCA No. 91 of 2002 where Kimaru J held that the 1st respondent took the law into his own hands when he unlawfully took possession of the motor vehicle from the appellant contrary to the agreement that required him to seek intervention of the law and not use the law of the jungle to take away the appellants property.

13. The respondent argued that Pinnel's case (1602) 5 Co Rep 117a, sets a precedent in English common law emphasizing the significance of contractual obligations and the prevention of unjust enrichment and the case of Murray vs Leisureplay plc [2005] EWHC 2014(Ch.) highlights the significance of adherence to contractual agreements and the importance of seeking legal redress in case of a contractual dispute.

14. The respondent then submitted that the Appellant’s actions constituted a breach of consent agreement and the established principles of peaceful possession and contractual enforcement.

15. He urged this court to dismiss the appeal with costs.

16. On costs, the respondent submitted that had the appellant not repossessed the motor vehicle without a court order he would not have instituted this suit and as such it is fair and in the interest of justice that the appellant is ordered to bear the costs of this appeal.

Analysis & Determination 17. Having considered the record of appeal, the submissions and the authorities relied on by the respective parties, I opine that the two issues arising for determination are: -a.Whether the small claims court lacked jurisdiction to hear and determine this matter.b.Whether the appeal herein is merited.

18. This is an appeal from the Small Claims Act. Such Appeals are provided under section 38 of the Small Claims Act. It states as follows;“(38)Appeals(1)A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law.(2)An appeal from any decision or order referred to in subsection (1) shall be final”

19. It is thus clear that appeals to this court are on matters of law only. On what constitutes, points of law, this has been settled. In the case of Peter Gichuki King'ara vs IEBC & 2 Others, Nyeri Civil Appeal No. 31 Of 2013, (Court of Appeal) (Visram, Koome & Odek, JJA) Of 13. 02. 2014, the Court of Appeal stated as follows:“It was held that it is trite law that the exercise of judicial discretion is a point of law and that the trial court in denying a prayer of scrutiny is exercising judicial discretion. The Court concluded that it would not be feasible for the Court of Appeal to order for a recount and scrutiny as this would involve matters of fact that were within the jurisdiction of the trial court. The court further held that the question of whether the trial judge properly considered and evaluated the evidence and arrived at a correct determination that is supported by law and evidence – with the caveat that the appeal court did not see the witness demeanor – is an issue of law.”

20. A question of jurisdiction is obviously a point of law. The question of the jurisdiction of the Small Claims Court was not raised by the parties before the trial court.

21. It is well settled law that Jurisdiction is a fundamental issue and without it, a court cannot proceed to deal with the matter. Thus, the fact that the issue was not raised by the appellant in the trial does not bar him from raising it herein.

22. It is also trite law that parties cannot, even by consent, confer jurisdiction upon a court that does possess it in the first place. Therefore, even if the appellant submitted himself to the jurisdiction of the Small Claims Court, he cannot be estopped from raising the issue on appeal.

23. In the well-known case of Owners of the Motor Vessel “Lillian S” vs Caltex Oil (Kenya) Ltd [1989] KLR 1, the Court of Appeal explained that:“Jurisdiction is everything. Without it a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction …. Where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given."

24. Jurisdictional issues can be raised at any time, including on appeal. This was so held by the Court of Appeal in Kenya Ports Authority vs Modern Holdings [E.A.] Ltd [2017] eKLR when it stated as follows:“We have stressed that jurisdiction is such a fundamental matter that it can be raised at any stage and even on appeal, though it is always prudent to raise it as soon as the occasion arises. It can be raised at any time, in any manner, even for the first time on appeal, or even viva voce and indeed, even by the court itself provided that where the court raises it suo motu parties are to be accorded the opportunity to be heard."

25. The Small Claims Court is a subordinate court of limited jurisdiction. Section 12(1) of the Small Claims Court Act, 2016 (‘’the SCCA’’) provides for the nature and pecuniary jurisdiction of the court as follows:12. Nature of claims and pecuniary jurisdiction(1)Subject to this Act, the rules and any other law, the court has jurisdiction to determine any civil claim relating to –(a)contract for sale and supply of goods or services;(b)a contract to money held and received;(c)liability in tort in respect of loss or damage cause to any property or for the delivery or recovery of moveable property;(d)compensation for personal injuries; and(e)set-off and counterclaim under any contract.

26. Section 12(3) of the Act then provides for the pecuniary jurisdiction of the Court and states that:Pecuniary Jurisdiction of the Court shall be one million shillings.

27. In the instant matter, the Appellant has argued that the value of the subject motor vehicle as per the first agreement dated 21st May,2022 was Ksh. 2,500,000/= and as such the Small Claim’s Court lacked pecuniary jurisdiction to determine the matter.

28. The respondent held the contrary view, and stated that the question which the trial court was limited to determine and it did, was whether the Appellant was in breach of the contract dated 26th November,2022.

29. From the statement of claim, the respondent was claiming breach of sale of Motor Vehicle contract, in the sum of Ksh. 900,000/=. The nature of the claim in his statement of claim states that it is for inter alia;“Breach of a sale of a motor vehicle contract in the sum of Kenya Shillings Nine Hundred Thousand Only (Kshs. 900,000/-)”

30. The nature of the subject matter is well captured in the trial court’s own judgment when it stated;“The claimant prayed for an order against the respondent to compel him to return motor vehicle registration number KBK 443 V, make Mitsubishi Truck….The issue before the court is subject of the agreement dated 26/11/2022. The said agreement provided that the Respondent was to return the suit vehicle to the claimant in exchange for payment of Ksh. 1,000,000 and Kshs. 900,000 in monthly instalments of Kshs. 45,000. ”

31. In my view, there was no way the trial court could sever the agreement dated 26th November 2022 from the agreement dated 21st May 2022. It could not determine the matter without reference to the subject matter, which was motor vehicle Registration Number KBK 443 V. Clearly, the court made reference to the motor vehicle in question. The value of the subject matter was Ksh. 2,500,000/- , way beyond the jurisdiction of the court.

32. It is thus my holding that the trial court acted in excess of its expressly stated jurisdiction. Any orders arising from the matter are a nullity.

33. Consequently, I proceed to set aside the Judgment and decree of the trial court for want of jurisdiction.

34. The appellant had also sought to have orders that the court enforce the agreement dated 26/11/2022, for each party to perform their obligation under the agreement. In my view that would amount to entertaining the appellant’s counter-claim in the lower court which was withdrawn for reasons recorded during the trial, in addition to upholding a process that was unlawful for want of jurisdiction.

35. Therefore, having set aside the orders of the trial court, I hold that the parties may proceed, if they so wish to present their respective claims before a court of competent jurisdiction for hearing and determination.

36. Both parties were at fault for raising their respective claim and counterclaim (subsequently withdrawn) before a court without jurisdiction. Therefore, each party will bear their own costs of this appeal.

37. Orders accordingly.

DATED, SIGNED AND DELIVERED AT NAKURU THIS 6TH DAY OF DECEMBER, 2023. H. M. NYAGAJUDGEIn the presence of;C/A KipsugutN/A for parties