[2022] KEHC 16311 (KLR)

Palvance Construction Ltd v National Government Constituency Development Fund (Civil Appeal 20 of 2018) [2022] KEHC 16311 (KLR) (15 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16311 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Civil Appeal 20 of 2018

KW Kiarie, J

December 15, 2022

Between

Palvance Construction Ltd

Appellant

and

National Government Constituency Development Fund

Respondent

(Being an Appeal from the ruling and order in Homa Bay Chief Magistrate’s CMCC No.4 of 2016 by Hon. R.N.B. Maloba –Senior Resident Magistrate)

Judgment

1. Palvance Construction Ltd, the appellant herein, was the plaintiff in Homa Bay Chief Magistrate’s CMCC No. 4 of 2016. This was a claim that arose from a contract for construction of classrooms as Akele Primary School. The appellant contended that the construction was completed but the respondent failed to pay the contact sum of Kshs.1, 683,523. 00. They therefore filed the suit. The suit was however struck out for want of jurisdiction on 16th May, 2018.

2. The appellant was dissatisfied and filed this appeal. He was represented by the firm of G.S Okoth & Company Advocates. He raised grounds of appeal as follows:a.The learned trial magistrate misdirected herself on several matters of law and fact in failing to appreciate the cardinal object of civil litigation as envisaged in Section 1A and 1B of the Civil Procedure Act, 2010. b.The learned trial magistrate erred in law and in interpretation of the provisions of section 56(1) of the National Government Constituency Fund Act by holding that the court lacked jurisdiction to hear and determine the suit and further that the same should be forwarded to the National Government Constituency Fund Board for hearing and determination whereas the said section had been complied with.c.The learned trial magistrate erred in law of civil practice and procedure in failing to take into consideration the fact that the appellant had already filed a claim with the National Government Constituency Fund Board, at the first instance as required by section 56(1) of the national Government Constituency Fund Act, which claim had been referred to the Fund Accountant Manager Homa-Bay town Constituency for settlement but due to inordinate delay and silence the plaintiff referred the dispute to Court as provided in the Act.d.The learned trial magistrate erred in law in failing to appreciate that it is due to the delay in settlement and/or further communication from the said board and/or Fund Accountant Manager Homa Bay Town Constituency that forced the appellants to move the honourable court to reinstate the matter for hearing and determination.e.The learned trial magistrate erred in law in totally disregarding the fact that the suit had been stayed and referred back to the Board and after the board had failed to settle the matter as demonstrated, an application to have the suit reinstated was made and the honourable court did reinstate the matter for hearing convinced that the matter should be reinstated and that the court has jurisdiction and by the above ruling the court was appealing against its own order.f.The learned magistrate erred in law in failing to appreciate that justice delayed is justice denied s the appellant having made efforts to have the matter settled by the board and having failed to receive settlement, the Honourable court having referred it back to the tribunal was an act of delaying and denying justice to the appellant.

3. The respondent was represented by the firm of Otieno, Yogo, Ojuro & Company Advocates. It was contended that the ruling by the trial court was proper and based on the law.

4. This Court is the first appellate court. I am aware of my duty to evaluate the entire evidence on record bearing in mind that I had no advantage of seeing the witnesses testify and watch their demeanor. I will be guided by the pronouncements in the case of Selle vs. Associated Motor Boat Co. Ltd. [1965] E.A. 123, where it was held that the first appellate court has to reconsider and evaluate the evidence that was tendered before the trial court, assess it and make its own conclusions in the matter.

5. Section 56(3) of the National Government Constituencies Development Fund provides as follows:Disputes of a civil nature shall be referred to the Board in the first instance and where necessary an arbitration panel whose costs shall be borne by the parties to the dispute, shall be appointed by consensus of the parties to consider and determine the matter before the same is referred to court.

6. The appellant has argued that the Fund Account Manager resolved the dispute at the meeting of 17th -18th December 2019. It has not been demonstrated that the issue had been resolved as averred. This therefore means that when the suit was filed and at the time of the impugned ruling, the court had no jurisdiction to hear and determine the matter. The said ruling was therefore based on the law. The Court of Appeal in the case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1 (Justice Nyarangi) while addressing the issue of jurisdiction stated: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 continuation 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 jurisdiction.

7. Can this court reinstate the suit which the court lacked jurisdiction at the time the decision was rendered? I am afraid it cannot. I equally have no jurisdiction to revive a matter where the trial court lacked jurisdiction at the time the decision was rendered. Sections 1A & 1B of the Civil Procedure Act cannot be invoked in such a case. I therefore dismiss the appeal with costs’

DELIVERED AND SIGNED AT HOMA BAY THIS 15TH DAY OF DECEMBER, 2022KIARIE WAWERU KIARIEJUDGE