[2022] KEHC 11958 (KLR)

Registered Trustees of Kids Alive Kenya Trust & another v Manganga (Suing as next friend and father to MCM (Minor)) (Miscellaneous Civil Application E544 of 2021) [2022] KEHC 11958 (KLR) (Civ) (21 July 2022) (Ruling)

Neutral citation: [2022] KEHC 11958 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Miscellaneous Civil Application E544 of 2021

CW Meoli, J

July 21, 2022

Between

Registered Trustees of Kids Alive Kenya Trust

1st Applicant

Benson Wokabi Wanjira

2nd Applicant

and

EzeKiel Robi David Manganga

Respondent

Suing as next friend and father to MCM (Minor)

Ruling

1. For determination is the motion dated November 5, 2021 by Registered Trustees of Kids Alive Kenya Trust and Benson Wokabi Wanjira (hereafter the 1st and 2nd applicant/applicants) seeking leave to file appeal out of time and stay of execution in respect of the judgment delivered on July 9, 2021 in Nairobi Milimani MCCC No E4037 of 2020 and all other consequential orders therefrom pending the hearing and determination of the intended appeal. The motion is premised on the provisions of sections 3A & 79G of the Civil Procedure Act (CPA), Order 50 rule 6 and Order 51 rule 1 of theCivil Procedure Rules (CPR) inter alia.

2. The grounds on the face of the motion are amplified in the supporting affidavit of the 2nd applicant, who describes himself as an officer of the 1st applicant and therefore competent to swear the affidavit on behalf of the applicants. He deposed that judgment in Milimani MCCC No E4037 of 2020 was delivered on July 9, 2021 in favour of Ezekiel Robi David Manganga (hereafter the respondent) and upon receipt and perusal of the judgment, the applicants felt aggrieved and determined to challenge the judgment. That in the first instance, they moved the trial court vide an application dated July 19, 2021 seeking to set aside the judgment of the trial court, but the motion was dismissed on October 29, 2021 by which date the time for filing appeal and order to stay execution earlier granted had lapsed and execution in recovery of the substantial decretal sum was imminent.

3. He asserts further that the applicants are aggrieved by the judgment and desire to appeal but their intended appeal may be rendered nugatory should execution proceed. He expresses apprehension that if the decretal sum is paid over, the respondent will be unable to make a refund rendering the appeal nugatory. He asserts that the intended appeal has an overwhelming chance of success and expresses the applicants’ willingness to furnish reasonable security and states that the respondent will not be prejudiced if the motion is allowed.

4. The respondent opposed the motion through his replying affidavit dated February 13, 2022. He contends that the motion is fatally defective, frivolous, and misleading and should be struck out. He asserts that the 2nd applicant has not demonstrated that he was properly authorized to depose on behalf of the 1st applicant and there is no evidence that he is an officer of the 1st applicant. He attacks the motion for being brought after unreasonable delay without satisfactory explanation asserting further that the judgment sought to be appealed from arose from a partial consent and has no chance of success. He views the motion as a delaying tactic intended to deny him the fruits of his judgment and asserts that the applicants have not demonstrated the prejudice they stand to suffer if the decretal sum is paid out; and that the continued delay in settling the judgment sum only serves to prolong the suffering of the minor herein who requires further medical attention due to injuries sustained in the road traffic accident from which his suit arose. Finally, pointing out that the appeal relates to quantum of damages, he pleaded with the court to order part payment of the decretal sum and the balance be deposited in a joint interest account.

5. When the motion came up for directions parties agreed to rely on their respective affidavit material filed in relation to the motion. The court has considered the rival affidavit material in respect of the motion. First, concerning the prayer seeking stay of execution pending the intended appeal, it is evident on a plain reading of Order 42 rule 6(1) of theCPR that an order to stay execution pending appeal presupposes the existence of an appeal. The filing of an appeal is a condition precedent to the exercise of this court’s appellate jurisdiction under Order 42 rule 6 (1) of the Civil Procedure Rules. Although the provision does not expressly say so, this can be inferred from the rule. Further, an analogy can be drawn from Order 42 rule 6 (4) of the Civil Procedure Ruleswhich states that an appeal is deemed filed in the Court of Appeal when the notice of appeal has been given. Equally, Order 42 rule 6 (6) of the Civil Procedure Rules states:“Notwithstanding anything contained in subrule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.” (Emphasis added).

6. It would seem therefore that the invocation of the jurisdiction of this court under Order 42 rule 6 (1) or 6 (6) of the Civil Procedure Rules must be preceded by the filing of an appeal, or compliance with the procedure for filing an appeal, in this case a memorandum of appeal (See Order 42 rule 1 of the Civil Procedure Rules). Until the memorandum of appeal is filed, the court may be acting in vacuo by considering the applicants prayer for stay of execution pending a non-existent appeal. The Court of Appeal in Abubaker Mohamed Al-Amin v Firdaus Siwa Somo [2018] eKLR while citing with approval the decision of the High Court in Rosalindi Wanjiku Macharia v James Kiingati Kimani (Suing as the Legal Representative of the Estate of Martin Muiruri (Deceased))[2017] eKLR concurred and adopted the foregoing reasoning.

7. Earlier, the Court of Appeal in the case of Equity Bank v Westlink MBO Limited [2013] eKLR while commenting on rule 5 (2) (b) of the Court of Appeal Rules, whose wording was then substantially similar to Order 42 rule 6 (1) of the Civil Procedure Rules, and on Order 42 rule 6 (6) of Civil Procedure Rules, left no room for doubt that an application for stay of execution pending appeal could only be entertained before it after the filing of an appeal or a notice of intended appeal. (See also Balozi Housing Co-operative Society Limited v Captain Francis E K Hinga[2012] eKLR).

8. Order 42 Rule 1 of the CPR provides that an appeal to the High Court shall be in the form of a memorandum of appeal. In this case, an appeal is yet to be filed and there is therefore no basis upon which this court could exercise its appellate jurisdiction under the said provision in a miscellaneous matter. If the applicants desired to seek an order to stay execution alongside the prayer for the late admission of their appeal, they ought to have first filed the memorandum of appeal in a proper appeal and the relevant application. In my considered view, the words that “an appeal may be admitted out of time” in section 79G, appears to admit both retrospective and prospective applications. So that leave under the section may be sought before or after a memorandum of appeal is filed. However, it may be more prudent for a party who also seeks stay of execution in the same motion for leave to appeal out of time to have filed the memorandum of appeal in advance. In the circumstances, the prayer seeking to stay execution of the judgment and decree in Nairobi Milimani MCCC No E4037 of 2020 pending hearing and determination of the intended appeal has no legal anchor and must fail.

9. Having disposed of the prayer for stay of execution, the court will now address itself to the preliminary objection raised by the respondent regarding the 2nd applicant’s authority to swear or act on behalf of the 1st applicant in presenting the motion. The respondent deposed in his replying affidavit that the 2nd applicant has not tendered any resolution by the 1st applicant authorizing him to act or evidence that he is an officer of the 1st applicant. The applicants could have but did not seek to tender any material to demonstrate the 1st applicant’s authorization to the 2nd applicant to swear the supporting affidavit or to act in its behalf in this matter.

10. The name of the 1st applicant in the pleadings is “Registered Trustee of Kids Alive Kenya Trust”. As described, the 1st applicant is apparently a body corporate with perpetual succession and a common seal, with power to sue and be sued in their corporate name pursuant to the above provision under the Trustees (Perpetual Succession) Act. Section 3 (1) & (3) of the Act provides that; -“(1)Any person or body of persons who have lawfully constituted themselves for the purpose of forming a trust may apply to the Principal Registrar for a certificate of incorporation.(2)…(3)The trustees shall thereupon become a body corporate by the name described in the certificate, and shall have perpetual succession and a common seal, and power to sue and be sued in their corporate name and, subject to the conditions and directions contained in the certificate, to hold and acquire, and by instruments under the common seal to convey, transfer, assign, charge and demise any movable or immovable property or any interest therein now or hereafter belonging to, or held for the benefit of, the trust concerned in the same manner and subject to such restrictions and provisions as trustees might so do without incorporation.”

11. Order 9 rule 2 of the Civil Procedure Rules provides concerning incorporated entities inter alia that:-“The recognized agents of parties by whom such appearances, applications and acts may be made or done are—(a)subject to approval by the court in any particular suit persons holding powers of attorney or an affidavit sworn by the party authorizing them to make such appearances and applications and do such acts on behalf of parties;(b)persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorized to make and do such appearances, applications and acts;(c)in respect of a corporation, an officer of the corporation duly authorized under the corporate seal.”

12. Order 4 rule 1(4) of the Civil Procedure Rules has similar requirements regarding persons who may swear a verifying affidavit on behalf of a corporation. The requirement in Order 9 rule 2 is that a person acting or deposing any affidavit on behalf of a body corporate should demonstrate that he is duly authorized to so act on behalf of the body corporate. The Court of Appeal in Kenya Trypanosomiasis Research Institute v Anthony Kabimba Gusinjilu [2019] eKLR while dealing with the issue held that:“The question we have to determine is; who is a ‘duly authorized’ officer" This question was answered in Makupa Transit Shade Limited & Another v Kenya Ports Authority & Another [2015] eKLR as follows:“In our view, the authority, as with other corporate bodies, has its affidavits deponed on its behalf by persons with knowledge of the issues at hand who have been so authorized by it. It was therefore sufficient for the deponents to state that “they were duly authorized.” It was then up to the appellants to demonstrate by evidence that they were not so authorized.”Here is a person, who on oath stated that he is duly authorized and in the absence of evidence to counter or contradict him, it cannot fall for the Judge to rule otherwise. It is obvious that whether or not the deponent was an authorized agent is a matter to be decided on evidence and none has been adduced by the respondent.In Spire Bank Limited v Land Registrar & 2 others[2019] eKLR the court in discussing Order 4 rule 1(4) Stated as follows:“It is essential to appreciate that the intention behind order 4 rule 1 (4) was to safeguard the corporate entity by ensuring that only an authorized officer could institute proceedings on its behalf. This was to address the mischief of unauthorized persons instituting proceedings on behalf of corporations, and obtaining fraudulent or unwarranted orders from the court. The company’s seal that is affixed under the hand of the directors ensured that they were aware of, and had authorized such proceedings together with the persons enlisted to conduct them. And where evidence was produced to demonstrate that a person was unauthorized, the burden shifted to such officer to demonstrate that they were authorized under the company seal. With this in mind, we dare say that the provision was not intended to be utilized as a procedural technicality to strike out suits, particularly where no evidence was produced to demonstrate that the officer was unauthorized.”

13. The 2nd applicant in the first paragraph in the supporting affidavit to the motion states that;-“1. I am the 2nd applicant herein and the officer of the 1st applicant, I am therefore competent to swear this affidavit on my behalf and on behalf of the 2nd applicant.” (sic)

14. The key question here is whether the deponent was duly authorized to swear the supporting affidavit on behalf of the 1st applicant and to act as he did in this matter. While it is true as held in Makupa Transit Shade Limited ((supra) as cited with approval in Kenya Trypanosomiasis Research Institute (supra) ) that the provisions of Order 4 rule 1(4) and Order 9 rule 2 of the Civil Procedure Rulesare not “intended to be utilized as a procedural technicality to strike out suits, particularly where no evidence was produced to demonstrate that the officer was unauthorized ” it is imperative for the deponent to an affidavit sworn on behalf of a corporation to state that they were duly authorized to depose. In this instance, the deponent does not expressly state that he has such authority to depose on behalf of the 1st applicant, but he merely states that he is an officer of the 1st applicant and therefore competent to depose.

15. In the court’s opinion, for purposes of Order 9 rule 2(c) of the Civil Procedure Rules, there is a difference between the terms ‘competence’ and ‘authority’. Competence may arise from a deponent’s knowledge of pertinent facts of the case at hand, and it can also be said that authorization makes the person competent to depose or act on behalf of the company. However, it is due authorization by a corporation that vests the requisite standing upon a person to act on behalf of a corporation. Without a demonstration of authority even by way of a deposition or averment, the 2nd applicant had nolocus standi to depose to the supporting affidavit in this case or to act on behalf of the 1st applicant as he did. Moreover, given the manner in which the affidavit is drawn, it is impossible to distinguish which of the depositions are by the 2nd applicant in his own behalf, and which are made on behalf of the 1st applicant. Yet, it appears that both parties were seeking the same prayers for leave to appeal out of time and stay of execution.

16. Black’s Law Dictionary, Tenth Edition defines locus standi as:“…the right to bring an action or to be heard in a given forum.”The Court of Appeal in James Teko Lopoyetum v Rose Kasuku Watia & 4 others[2021]eKLR reiterated its decision in Alfred Njau & 5 others vs. City Council of Nairobi[1983] eKLR where it held:“The term locus standi means a right to appear in court and, conversely, as is stated in Jowitt’s Dictionary of English Law, to say that a person has no locus standi means that he has no right to appear or be heard in such and such a proceeding.”See also Sheila Nkatha Muthee v Alphonce Mwangemi Munga & Another [2016] eKLRwhere it was held that:“Locus standi is a primary point of law almost similar to that of jurisdiction since the lack of capacity to sue renders the suit incompetent.”

17. In the circumstances, the court is persuaded that the respondent’s objection is merited. The supporting affidavit must in the absence of proof of authority to the deponent be treated as one sworn by an incompetent person on behalf of the 1st applicant and thus incapable of supporting the motion before the court in that regard. A motion that is not supported by an affidavit is incompetent and liable for striking out. Accordingly, the motion dated November 5, 2021 is hereby struck out with costs to the respondent.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 21STDAY OF JULY 2022C.MEOLIJUDGEIn the presence of:For the Applicants: Mr. ManyaraFor the Respondent: N/AC/A: Carol