[2023] KEHC 25893 (KLR)

Odhiambo v Kenya Power & Lighting Company Limited & another (Civil Appeal 211 of 2018) [2023] KEHC 25893 (KLR) (21 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25893 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal 211 of 2018

DKN Magare, J

November 21, 2023

Between

Peter Otieno Odhiambo

Appellant

and

Kenya Power & Lighting Company Limited

1st Respondent

Attorney General

2nd Respondent

(Being an Appeal from the Judgement and Decree of Honourabe C.N Ndegwa, Principal Magistrate delivered in Mombasa CMCC No. 843 of 2016 dated and delivered on 13th September 2018)

Judgment

1. This Appeal arises from the Judgement and Decree of Trial Court delivered on 13th September 2018 in Mombasa CMCC No. 843 of 2016.

2. The Trial Court entered Judgement for the Respondents dismissing the Appellant’s suit.

3. The Appellant being aggrieved by the Award filed this Appeal and preferred 3 grounds in the Memorandum of Appeal dated on 9th October 2018.

4. I have perused the 3 paragraph Memorandum of Appeal. The Memorandum of Appeal only raises one issue, that is:a.Whether the Trial Court erred in law and fact in finding that the Respondent’s suit was statute barred under Section 3(1) of the Public Authorities Act.

Analysis 5. This Court has considered the pleadings, evidence, submissions and authorities relied on by the parties in support and opposition to the Appeal.

Duty of the first Appellate Court 6. This being a first Appeal, the Court should with judicious alertness re-evaluate the evidence, and consider arguments by parties and apply the law thereto, and, make its own determination of the issues in controversy.

7. Except however, that it should give allowance to the fact that it neither saw nor heard the witnesses’ testimonies.

8. In the case of Selle & Another vs. Associated Motor Board Company Ltd. [1968] EA 123, the Court stated as follows:“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal form a trial by the High Court is by way of a retrial and the principles upon the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect, in particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”

9. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a Trial Court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand.

10. In the case of Mbogo and Another vs. Shah [1968] EA 93 where the Court stated:“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”

11. The Court is to bear in in mind that it had neither seen nor heard the witnesses. It is the Trial Court that has observed the demeanor and truthfulness of those witnesses. However, documents still speak for themselves. The observation of documents is the same as the lower court as parties cannot read into those documents matters extrinsic to them.

12. The issue in this case is whether the court should set aside the Judgement and Decree of the Trial Court.

13. The Appeal challenges the lower court’s finding on jurisdiction. A question on jurisdiction the court should be raised at the earliest opportunity. In this case, jurisdiction was not determined at the earliest opportunity. It was determined in the main judgement.In owners of the motor vessel “Lillian S” Vs Caltex Oil (K) Ltd (1989) KLR1 Hon Justice Nyarangi of the court of Appeal held that:“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. 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 confirmation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without it”.

14. The trial court did not determine the case on its merits. The case was determined on a preliminary question of jurisdiction and the rest of the issues were silent for want of jurisdiction.

15. Like the Trial Court, this court will determine whether the court has jurisdiction to determine the suit.

16. It is evident that a Preliminary Objection, raises pure point of law, which is argued on the assumption that all facts pleaded by the other side are correct. However, it cannot be raised if any facts have to be ascertained from elsewhere or the court is called upon to exercise judicial discretion.

17. In the case of Oraro vs Mbaja (2005) 1KLR 141, the Court held that:-“Anything that purports to be a Preliminary Objection must not deal with disputed facts and it must not derive its foundation from factual information which stands to be tested by rules of evidence.”

18. The Trial Court correctly noted that the Plaintiff was acquitted on 29th April 2014 and filed this suit on 29th April 2016 after two years. The claim was for special and general damages for malicious prosecution and defamation. The Plaintiff pleaded that the 1st Defendant maliciously and without any reasonable probable cause caused laid false information before the Police at Changamwe Police Station that the Plaintiff and others stole 95 meters of 33KV single cone copper cables valued at Ksh. 285,000/=.

19. A Preliminary Objection was well settled in the Mukisa Biscuits Manufacturing Co. Ltd…Vs…West End Distributors Ltd (1969) EA 696 to mean: -“So far as I am aware, a Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”Further Sir Charles Nebbold, JA stated that: -“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of Preliminary Objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop.

20. The Court then proceeded to find as follows:There is no doubt that limitations having been pleaded in accordance with Order 4 Rue 1 of the Civil Procedure Rules remains one of the issues for determination and the court must pronounce itself on that issue before dealing with the merits of the case…Judgement in the criminal case which is the foundation of this case was delivered on 29th April 2014. This suit was filed on 29th April 2016 2 years after the cause of action arose. The Plaintiff’s case is statute barred under Section 3(1) of the Pubic Authorities Limitations Act.

21. In addressing this issue, it is imperative that I first deal with the law on the subject. Section 3(1) of the Public Authorities Limitations Act Chapter 39 of the Laws of Kenya and which provides as follows –(1)No proceedings founded on tort shall be brought against the Government or a local authority after the end of twelve months from the date on which the cause of action accrued.(2)No proceedings founded on contract shall be brought against the Government or a local authority after the end of three years from the date on which the cause of action accrued.(3)Where the defence to any proceedings is that the defendant was at the material time acting in the course of his employment by the Government or a local authority and the proceedings were brought after the end of—(a)twelve months, in the case of proceedings founded on tort or;(b)three years, in the case of proceedings founded on contract, from the date on which the cause of action accrued, the court, at any stage of the proceedings, if satisfied that such defendant was at the material time so acting, shall enter judgment for that defendant.

22. Under Section 2 of the Act, proceedings founded on tort shall be brought against the Government or a local authority after the end of twelve months from the date on which the cause of action accrued. Further, proceedings against a local authority includes proceedings against any person employed by a local authority and sued or intended to be sued as such.

23. Section 3 of the State Corporations Act, cap 446 provides as follows:A state corporation established under this section shall—have perpetual succession;in its corporate name be capable of suing and being sued;subject to this Act, be capable of holding and alienating movable and immovable property.

24. The Appellant’s action was based on malicious prosecution, a tort. It ought to have been filed in court within 1 years of the judgement acquitting the Plaintiff. It was not. Instead, it was filed 2 years later. Consequently, I find not fault even on merit in the finding of the trial court.

Determination 26. In the circumstances, I make the following Orders.a.The Appeal is dismissed, with costs of 50,000/=.b.The same be paid within 30 days in default execution do issue.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 21ST DAY OF NOVEMBER, 2023. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of: -No appearance for partiesCourt Assistant - Brian