[2017] KEHC 4226 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CONSTITUTION AND JUDICIAL REVIEW DIVISION

MISC.CIVIL APPLICATION NO.4A OF 2017 (JR)

IN THE MATTER OF: APPLICATION BY KENYA KAZI SERVICES LIMITED

FOR JUDICIAL REVIEW ORDERS OF CERTIORARI, PROHIBITION AND MANDAMUS

AND

IN THE MATTER OF: SENIOR RESIDENT MAGISTRATE’S CIVIL CASE

NO.2275 OF 2012BETWEEN BENJAMIN NYALE VERSUS K.K

SECURITYCOMPANYLIMITED DECISION OF 20TH JANUARY

BETWEEN

REPUBLIC.........................................................................APPLICANT

VERSUS

SENIOR RESIDENT MAGISTRATE, MOMBASA...........RESPONDENT

AND

BENJAMIN NYALE.............................................INTERESTED PARTY

EX PARTE: KENYA KAZI SERVICES LIMITED

RULING OF THE COURT

Application

1. By the Notice of Motion dated 20th February 2017 filed under Section 8 of the Law Reform Act, Cap 26, Laws of Kenya and Order 53 of the Civil Procedure Rules and pursuant to leave granted by this Court on 17th February 2017, the ex parte Applicant seeks the following orders:

a. An Order of Certiorari to issue to remove to this Honorable Court for purposes of quashing forthwith the decisions/Rulings of 20th January, 2017 and subsequent Orders, Warrants and execution process against the Applicant in Mombasa SRMCC No. 2275 of 2012.

b. An Order of Prohibition to issue prohibiting the Interested Party from continuing with the execution process against the Applicant’s proclaimed goods in SRMCC No. 2275 of 2012.

c. An Order of Mandamus directing the Respondent to have the Applicant’s Objection proceedings in Mombasa SRMCC No. 2275 of 2012 be heard de novo and Ruling be delivered according to the requirements of the rules of natural justice.

d. Costs of the proceedings be provided for.

The Application is supported by the statutory statement dated 17th February 2017 and the verifying affidavit of SOPHIA MOHAMED and the affidavit of SHADRACK JOHN MOSE both sworn on 16th February, 2017.

2. The ex parte Applicant alleges that the interested party herein sued it in Mombasa SRMCC No. 2275 of 2012 and obtained Judgment pursuant to which the Interested Party executed warrants by proclaiming goods/assets belonging to the Applicant. The ex parte Applicant further alleges that it lodged objection proceedings in respect of which submissions were filed and the matter was pending Ruling on notice as required by law.

3. The ex parte Applicant alleges that the Ruling was delivered on 20th January, 2017 and no notice of delivery of Ruling on objection proceedings in SRMCC No. 2275 of 2012- Mombasa was served on its advocates on record Messrs MOSE, MOSE & MILLIMO ADVOCATES.The ex parte Applicant further alleges that it only became aware of the Ruling when they were informed of an execution process on 3rd February, 2017.

4. The ex parte Applicant alleges that the court treated its counsel on record as being in Mombasa which was erroneous as the Notice of Appointment clearly showed that the firm was based in Nairobi and hence lack of service of the notice of delivery of Ruling. The ex parte Applicant further alleges that counsel for the Plaintiff/Decree Holder in the matter once served with the notice of deliver of Ruling should have indicated to the court that notice was erroneously addressed to Mombasa and without a postal address thereto.

5. The ex parte Applicant’s case is that it was incumbent upon the Respondent to establish service on its counsel and the Respondent had no jurisdiction to deliver a pending Ruling without Notice to all parties.

Response

6. The Interested Party opposed the application by way of a replying affidavit sworn by his counsel PHILIP OJODE on 25th March, 2017 and a Supplementary Affidavit sworn by the same person on 12th April, 2017. The Respondent herein did not respond to the application.

7. Mr. Ojode deponed that an order of mandamus cannot issue against the Respondent because such an order compels the performance of a duty imposed by statute where the person to whom the duty is imposed fails or refuses to perform the same while in this case the ex parte Applicant’s complaint is that the duty to inform about the delivery of the Ruling, though done was wrongly addressed and hence wrongly performed. The deponent alleged that if this order is granted it would direct the re-writing of the Ruling or the hearing of the objection afresh yet the Respondent is functus officio.

8. Counsel stated that an order of prohibition cannot issue against the Interested Party to prevent the execution process from proceeding as the execution process is by a private person and the ex parte Applicant has not proved that the Interested Party was acting in excess of it jurisdiction or that there was a departure from the rules of natural justice.

9. The deponent further alleged that an order of certiorari cannot issue against the Respondent to quash her decision since the order is issued when a court acts without jurisdiction or in excess of its jurisdiction which is not the case in this instance.

10. The Interested Party’s case is that these proceedings are concerned with the private rights of the ex parte Applicant which is not the purview of the Judicial Review Court and further that the ex parte Applicant is challenging the decision and not the process which is the jurisdiction of the Appellate Court and if this court granted the orders prayed for it would be usurping the jurisdiction of the Appellate Court.

Hearing

11. When the application came up for hearing on 30th March, 2017, the Respondent through his counsel Mr. Guyo Wachira requested not to participate in these proceedings and the Court released the Respondent from the proceedings. The parties agreed to canvass the application by way of written submissions. On 18th May, 2017, the parties highlighted their submissions in open court.

Submissions

12. Mr. Mogaka, counsel for the ex parte Applicant raised a preliminary issue on admissibility of the Supplementary Affidavit filed on 13th April, 2017 by the Interested Party, stating that the same should be struck out because on 30th March, 2017, the Interested Party was ordered to file a supplementary affidavit within seven (7) days and the said affidavit is not within the time frame given by the court.

13. On the substantive issue, Mr. Mogaka submitted that no notice of delivery of Ruling in Mombasa SRMCC No. 2275 of 2012 was served upon the firm of Mose Mose & Millimo Advocates who were on record for the objector. Counsel referred to page 261 of the Verifying Affidavit of SOPHIA MOHAMED, where the notice of delivery of Ruling is attached, and it shows that only the Interested Party’s counsel was served with the notice on 16th January, 2017.

14. Mr. Mogaka further submitted that vide their Notice of Appointment of Advocate dated 8th April, 2015 (which is exhibited at page 72 of the verifying affidavit of SOPHIA MOHAMED), they had given the full details and description of the physical location of their firm as being Mose Mose & Milimo Advocates, KU PLAZA, (Comcraft Building) 3rd Floor, P.O Box 9403-00200, Nairobiand not Mombasa.

15. Mr. Mogaka submitted that Notice as to a hearing and/or delivery of a Court decision/Ruling or Judgment to all parties is essential and a fundamental ingredient of the principle of natural justice/fairness in the judicial process and the action by the Respondent to serve only one party and fail to serve the ex parte Applicant is a fundamental procedural breach of natural justice or fairness. Counsel submitted that the failure to serve the notice of delivery of Ruling deprived or infringed on the ex parte Applicant’s right to be present through counsel and make representations amongst them to formally seek leave to appeal as provided under Order 43 (2) & (3) of the Civil Procedure Rules. Counsel referred the Court to the case of Ngoso General Contractors Ltd v. Gichunge [2005] KLR 738 where the Court of Appeal held that:

“The fact that an order was made by the Magistrate granting a right of appeal within 28 days and directing the party in attendance to inform the other side did not cure the flagrant breach of a mandatory procedural rule which accords with fundamental rules of natural justice and the right to be heard which the Constitution safeguards”

16. Mr. Mogaka submitted that in the exercise of judicial authority, justice should be done to all and must also be seen to have been done and that service of notice of delivery of Ruling to one party erodes public confidence in the Judiciary.

17. In relation to the Orders sought, Mr. Mogaka submitted that the matter involved goods that had been proclaimed pursuant to warrants issued but the physical removal and sale of the said goods was yet to be carried out therefore the Orders would serve to halt the execution process.

18. In response, Mr. Ojode, Counsel for the Interested Party, submitted that the Interested Party was granted leave on 30th March to file their supplementary affidavit within fourteen (14) days and the same was filed on 13th April, 2017 within the time ordered by the court hence the supplementary affidavit should not be struck out.

19. Mr. Ojode submitted that Judicial Review is concerned with the decision making process and not with the merits of the decision itself and the court should concern itself with whether the decision makers had jurisdiction, whether the person affected by the decision was heard before it was made and whether or not in making the decision, the decision maker took into account relevant matters. Counsel further submitted that the ex parte Applicant had not made any attempts to show that the learned Magistrate committed an error in the process of making her decision or that she acted irrationally or engaged in procedural impropriety.

20. Mr. Ojode submitted that the complaint by the ex-Applicant is that they were not sufficiently informed of the date when the Ruling would be delivered and this does not warrant a judicial review process. Counsel further submitted that the order of mandamus is totally misplaced and if issued it would direct the trial Magistrate to sit on its own Ruling and re-write the same afresh.

21. Mr. Ojode submitted that an order of certiorari which is meant to quash a decision will only issue if the decision is without or in excess of jurisdiction or where the rules of natural justice are infringed which is not the case herein. Counsel submitted that the ex parte Applicant did not challenge the jurisdiction of the subordinate court and that the ex parte Applicant was duly heard and cannot hence invoke the principles of natural justice.

22. Mr. Ojode submitted that the assertions by the ex parte Applicant had no foundation in law as it was the ex parte Applicant who moved the Court through objection proceedings and therefore the ex parte Applicant had the duty to inquire from the court when the Ruling which was motioned by themselves would be delivered. Counsel further submitted that if the ex parte Applicant was aggrieved by the decision of the subordinate court they ought to have appealed which they did but withdrew the same pursuant to a preliminary objection by the Interested Party on the competency of the appeal and urged this Court not to act as a court of Appeal as it would involve going into the merits of the case.

23. Mr. Ojode submitted that this matter was ill suited as Judicial Review only deals with the process of decision making and not the merits of the decision itself and the right procedure was for the ex parte Applicant to appeal the decision of the subordinate court on its merits and urged this court to dismiss the application.

Determination

24. Having carefully analyzed the application, I find that the issues for determination are:

a. Whether the Interested Party’s Supplementary Affidavit filed on 13th April, 2017 should be struck out.

b. Whether the ex parte Applicant was not served with the Notice of delivery of Ruling in SRMCC No. 2275 of 2012- Mombasa.

c. Whether the Respondent’s action of delivering the Ruling inSRMCC No. 2275 of 2012- Mombasawithout serving notice to the ex parte Applicant is unlawful.

d. Whether the Orders sought herein should be granted.

Whether the Interested Party’s Supplementary Affidavit filed on 13th April 2017 should be struck out.

25. The Interested Party herein on 30th March 2017 through his Counsel, Mr. Ojode requested this Court for leave to file a Supplementary Affidavit. This Court subsequently granted the Interested Party leave to file the Supplementary Affidavit within 14 days and not 7 days as alleged by the ex parte Applicant. The Interested Party filed its Supplementary Affidavit on 13th April, 2017 and thus the affidavit was filed within the time frame given by this Court and cannot thus be struck out as prayed by the ex parte Applicant.

Whether the ex parte Applicant was not served with the Notice of delivery of Ruling in SRMCC No. 2275 of 2012- Mombasa.

26. The ex parte Applicant alleges that its advocates were not served with the notice of delivery of Ruling in relation to objection proceedings that it had initiated in SRMCC No. 2275 of 2012- Mombasa.They further claim that the notice of delivery of Ruling (copy annexed to the affidavit of SOPHIA MOHAMED at page 261) showed that their advocate’s firm had been indicated as being located in Mombasa while their offices are situated in Nairobi. After a perusal of the copy of the notice of delivery of Ruling dated 16th January, 2017. I confirm that the ex parte Applicant’s advocates were indeed not served with the notice as the only signature and stamp that can be found on the document belongs to the interested party’s advocates, M/s Ojode & Udoto Advocates.

Whether the Respondent’s action of delivering the Ruling in SRMCC No. 2275 of 2012- Mombasa without serving notice to the ex parte Applicant is unlawful.

27. The Respondent herein delivered her Ruling regarding objection proceeding initiated by the ex parte Applicant on 20th January, 2017 in the absence of the ex parte Applicant or its counsel who had not been served with a notice of delivery of the Ruling. The learned Magistrate herein did not inquire whether the parties were duly served with the notice of delivery of the Ruling. Mr. Mogaka submitted that they became aware of the Ruling on 3rd February, 2017 when a representative of the Applicant informed them that the execution process had begun to which they hurriedly lodged an application before the subordinate court on 6th February, 2017 seeking stay of removal of proclaimed goods but the subordinate court declined to grant interim orders. Mr. Mogaka submitted that if they had been duly served with the notice, they would have been present in court and would have sought leave to appeal against the Ruling upon its delivery as the right of appeal did not lie as of right. Counsel submitted that the ex parte Applicant was denied an opportunity to be heard. Order 43 Rule 1 (1) provides:

“An appeal shall lie as of right from the following Orders and rules under the provisions of Section 75 (1) (h) of the Act.”

The circumstances of the matter before the Respondent do not warrant an appeal as of right and as such leave from the court is required before instituting the appeal.

28. The principles of natural justice provide that no one should be condemned unheard. The Ruling before the Respondent was crucial as it involved an execution process which the ex parte Applicant wanted to halt. The ex parte Applicant stood to suffer serious financial harm had the execution process been carried out. Therefore, it was important that the ex parte Applicant’s counsel be given an opportunity to be present in court when the Ruling was read so that he could apply for any appropriate orders upon delivery of the Ruling. I therefore find that the learned Magistrate erred in law in delivering the Ruling dated 20th January, 2017 without first inquiring whether the parties were properly served with the notice of delivery of the Ruling.

Whether the Orders sought herein should be granted.

29. The ex parte Applicant herein sought the following orders:

a. An Order of Certiorari to issue to remove to this Honorable Court for purposes of quashing forthwith the decisions/Rulings of 20th January, 2017 and subsequent Orders, Warrants and execution process against the Applicant in Mombasa SRMCC No. 2275 of 2012.

b. An Order of Prohibition do issue prohibiting the Interested Party from continuing with the execution process against the Applicant’s proclaimed goods in SRMCC No. 2275 of 2012.

c. An Order of Mandamus directing the Respondent to have the Applicant’s Objection proceedings in Mombasa SRMCC No. 2275 of 2012 be heard de novo and Ruling be delivered according to the requirements of the rules of natural justice.

30. I do not find the orders sought in (a) and (c) above to be appropriate. This is so because in (a) above the ex parte Applicant is seeking for an order of certiorari to quash the decision/Ruling of 20th January, 2017 yet the ex parte Applicant did not challenge the manner in which the decision was reached nor the jurisdiction of the Court. As the Interested Party correctly put it “an Order of Certiorari is issued where the decision is made without or in excess of jurisdiction or where the rules of natural justice are not complied with or for such like reasons”. The ex parte Applicant is complaining about failure on the part of the Respondent to serve it with notice of delivery of the Ruling and not the manner in which the decision itself was reached.

31. In relation to Order (c) above, the Interested Party correctly put it that:

“…the order of Mandamus is of a most extensive remedial nature from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular things therein specified which appertain to his or their office and is in nature of a public duty. Its purpose is to remedy the defects of justice and accordingly will issue, to the end that justice may be done in all cases where there is a specific legal right and no specific legal remedy for enforcing that right, and it may issue in cases where though there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual”.

32. The ex parte Applicant prays that an order of mandamus be directed to the Respondent to have a new trial in relation to the objection proceedings in Mombasa SRMCC No. 2275 of 2012and deliver a Ruling in accordance with rules of natural justice. This would mean that the learned magistrate would sit on its own Ruling and in essence sit as an appellate court and re-try the objection proceedings. This cannot be allowed as it would not be in the interest of justice.

33. The purpose of the Judicial Review proceedings is to do justice and especially to ensure that procedural justice is assured. It is also trite now that Judicial Review remedy will not be readily available where there are other remedies which appear to be more convenient. Although the learned Honourable magistrate erred in not issuing notice to all the parties before delivering the said Ruling, the ex parte Applicant had available remedies and which appear to me to be more convenient in the circumstances. The ex parte Applicant has the option to go before the learned magistrate vide an application for leave to appeal. Further, or in addition the ex parte Applicant can still make that application in a higher court. It is clear that there are remedies available to the ex parte Applicant, and to enable the ex parte Applicant to access that remedy I make the following orders:

a) An Order of Prohibition is hereby issued prohibiting the Interested Party from continuing with the execution process against the Applicant’s proclaimed goods in SRMCC No. 2275 of 2012.

b) The ex parte Applicant is hereby allowed to make an application for leave to file an appeal against the Ruling delivered on 20th January 2017 in SRMCC No. 2275 of 2012.

c) Costs to be in the cause.

Dated, Signed and Delivered in Mombasa this 20th day of July, 2017.

E. K. O. OGOLA

JUDGE

In the presence of:

M/s Onkoba holding brief Mose for Applicant

Mr. Makuto holding brief M/s Kiti for Respondent

Mr. Mohamed holding brief Mr. Ojode for Interested Party

Mr. Kaunda Court Assistant