[2022] KEHC 16410 (KLR)

Revital Health Care (EPZ) Limited v Public Procurement Oversight Authority & 2 others (Constitutional Petition 75 of 2012) [2022] KEHC 16410 (KLR) (3 November 2022) (Ruling)

Neutral citation: [2022] KEHC 16410 (KLR)

Republic of Kenya

In the High Court at Mombasa

Constitutional Petition 75 of 2012

A. Ong’injo, J

November 3, 2022

Between

Revital Health Care (EPZ) Limited

Petitioner

and

Public Procurement Oversight Authority

1st Respondent

Kenya Medical Supplies Agency

2nd Respondent

Attorney General

3rd Respondent

Ruling

1. Vide an application dated August 23, 2022, the petitioner sought for orders: -i.Restraining the 2nd respondent either directly or through Sure Auctioneers from attaching/carting away and/or selling the petitioner’s properties listed in the proclamation of attachment, repossession, distrain of movable properties dated July 29, 2022. ii.That the 2nd respondent be restrained from carrying out and undertaking any execution for any costs against the petitioner.iii.That an order be issued declaring illegal, null and void the execution for costs commenced and undertaken by the 2nd respondent through the proclamation of attachment, requisition and distrain of movable property by Sure Auctioneers dated July 29, 2022. iv.That an order do issue directing the 2nd respondent to refund to the petitioner any and all the monies paid by the petitioner to the 2nd respondent either directly or through the 2nd respondent’s advocates and Sure Auctioneers on account of alleged costs of this suit and auctioneer’s fees within 14 days of this order in default of which the petitioner be at liberty to recover the amount from the said 2nd respondent.v.The petitioner also sought for costs of the application to be paid by the 2nd respondent.

2. This application is supported by grounds on the face of the application and the supporting affidavit of Rajnikant C Vora the director of the petitioner sworn on August 23, 2022 to the effect that no costs were awarded or taxed in this petition and the execution for costs commenced by and on behalf the 2nd respondent to recover costs is illegal. It is also argued that the auctioneer deliberately exaggerated costs beyond that which is allowed in law and it is for that reason that the said execution be set aside.

3. This application was opposed by the 2nd respondent’s replying affidavit sworn on September 13, 2022 by Edwin Wangwe Waudo, an advocate of the High Court of Kenya in which he averred that the Court of Appeal in Mombasa Civil Appeal No 65 of 2016 determined the appeal in favour of the 2nd respondent together with costs. That costs were taxed on November 1, 2021 by the Deputy Registrar of the Court of Appeal pursuant to rule 1 of the Court of Appeal Rules 2013as read with the 3rd schedule of the said rules.

4. That pursuant to the taxation of the said bill, the 2nd respondent was required to pay Kshs 310,000 being further court fees which was deposited at KCB on January 24, 2022 (paragraph 19 of the affidavit).

5. The deponent averred that the applicant having failed to challenge the ruling on taxation by the Deputy Registrar, it is dishonest for them to allege that no costs were awarded and that no taxation was ever carried out.

6. At paragraph 40, it is indicated that the deponent received a phone call from the applicant’s advocate to put on hold the execution process in abeyance until August 13, 2022 for purposes of obtaining a payment proposal from the applicants. That the applicant’s advocates, Khaminwa & Khaminwa Advocates wrote a letter on August 23, 2022 confirming the terms of the agreement and a payment proposal sent to them was rejected. That negotiations broke down after it became apparent that the applicants were not engaging in the said negotiations in good faith and it is dishonest for them to feign ignorance as to why the said execution proceedings have been instituted against them.

7. That on August 23, 2022, the applicants issued two cheques for Kshs 990,000 each dated August 23, 2022 and August 26, 2022 respectively. That the cheque dated August 26, 2022 was dishonoured by Equity Bank Limited upon presentation for payment and the said amount is still due and owed.

8. The supplementary affidavit sworn on September 16, 2022 was sworn by Rajnikant C Vora was filed in respect to the affidavit by the 2nd respondent.

9. The application dated August 23, 2022 was canvassed by way of written submissions. The applicant’s submissions dated September 16, 2022 were filed on September 20, 2022 and the respondent’s submissions dated September 28, 2022 were filed on September 29, 2022.

10. The applicant’s submissions are that the execution for costs commenced by and on behalf of the 2nd respondents is illegal as no costs have ever been awarded or taxed. It is submitted that costs were awarded and taxed in the Court of Appeal and that is why execution can only take place in the Court of Appeal and not in the High Court. That execution ought to have happened in the Court of AppealNo 65 of 2016.

11. It was further submitted that the moneys paid to the 2nd respondent through Sure Auctioneers was as a result of pressure piled upon them threatening to cart away their items. That they successfully cancelled payment of the said items as thy sought remedy in this matter.

12. The 2nd respondent’s submissions dated September 28, 2022 were to the effect that after the applicants had been served with the 2nd respondent’s replying affidavit, their position has now changed and admit that costs were awarded and they owe the 2nd respondent the decretal amount and that costs were awarded by the Court of Appeal and not the High Court. On the issue that Eliud Wangwe Waudo is not competent to swear an affidavit, it is submitted that the applicant did not point out the particular paragraph in the 2nd respondent’s affidavit which in their view offended the procedure. To support this position, the holding in Abel Vundi Kitungi (2014) eKLRwas relied on and held by Justice Aburili that the burden of proof lies on the party attacking the averments of the affidavit to point out the averments that are contrary to the rules and procedure. It is submitted that the applicant failed to challenge that position and that the challenged affidavit must fail. It was also submitted that the applicant had not demonstrated that the deponent of the replying affidavit swore the affidavit on contentious issues that he had no knowledge of and offended or contravened order 19 rule 3 (1) of theCivil Procedure Rules 2010. Further, it is also contended that the averments in the replying affidavit were not controverted and are supported by court records and as such there is an assumption that what is averred in the affidavit as factual evidence is admitted.

13. It is submitted that the decree arising under rule 113 (2) of the Court of Appeal Rules 2010, out of the certificate of taxation issued by the Deputy Registrar of the Court of Appeal was properly executed by the High Court pursuant to section 4 of the Appellate Jurisdictions Act which provides: -Any judgment from the court of appeal given in exercise of its jurisdiction under this act may be executed and enforced as if it were judgment of the high court.

14. It is further submitted that once a decision rendered by a court is reversed, modified or varied on appeal, the decision of the trial court is substituted by the decision rendered by the appellate court and the decision of the appellate court is sent to the court from which the appeal originated for further action.

15. That rule 36 (1) of the Court of Appeal Rules provides that a registrar shall send to the registrar of the superior court a sealed copy of the order embodying the decision of the court in any civil or criminal appeal from that court.

16. The provision of order 42 rule 34 of the Civil Procedure Rules 2010 was also relied to by the respondent and it provides that a copy of the judgment and of the decree certified by the High Court or such officer as it appoints in this behalf shall be sent to the court which passed the decree and shall be filed with the original proceedings in the suit and an entry of the judgment of the court to which the appeal is preferred shall be made in the register of civil suits.

17. It was submitted that the principle issue before this court is whether the applicant owes the 2nd respondent the decretal sum and that has not been disputed. That dispute over the auctioneer’s fees cannot provide a lawful justification for a non-payment of the decretal sum. In any event the applicant has a remedy in the assessment of the auctioneer’s fees as provided under rule 5 of the Auctioneers Rules.

18. The petitioner’s supplementary submissions are that the position that costs were not awarded and taxed in High Court Petition No 75 of 2012 has not changed. They argue that costs awarded in the Court of Appeal cannot be costs in this petition. They reiterated that the procedure used to execute for costs in the Court of Appeal were unprocedural and unlawful that all the documents which the respondent used in executing for costs emanated from the High Court No75 of 2012 and not civil Appeal No 65 of 2016.

19. It is argued that if the execution was in respect to Civil Appeal No65 of 2016, the same should have been indicated in the 2nd respondent’s execution documents. The applicant indicates that there is no decree dated November 1, 2021 either in the High Court or the Court of Appeal. The applicant has also argued that section 4 of the Appellate Jurisdiction Act, rule 36 (1) of the Court of Appeal Rulesand Order 42 rule 34 of the Civil Procedures cannot be used to support the unprocedural rules as commenced by the 2nd respondent. It is argued that the Appellate Jurisdiction Act was repealed and cannot be relied on. Refer to section 9.

20. That the Deputy Registrar High Court is not mandated to facilitate the enforcement of the decisions of the Court of Appeal and could not have signed the execution documents. That even if execution of costs were to be executed in the High Court, the right procedure was to file an application seeking entry of judgment of the amount awarded in the certificate of cost and thereafter the judgment entered for the costs can be executed as the judgment of this court. The Applicant relied on the judgment of Njoki Mwangi, J in Global Vehicles (K) Ltd v Lenana Road Motors Limited (2017) eKLR.

Analysis and Determination 21. Having considered the grounds of the application dated August 23, 2022 together with the supporting affidavit sworn on August 23, 2022 and the supplementary affidavit by the applicant sworn on September 16, 2022 as well as submissions by the applicant dated September 16, 2022 and supplementary submissions dated October 5, 2022 respectively; and having considered the 2nd respondent’s opposition to the application by a replying affidavit sworn on September 1, 2022 and the respondent’s submissions dated September 28, 2022 the issues that fall for determination as rightly framed by the applicant is whether the execution for costs by the 2nd respondent against the petitioner should be set aside for being illegal, null and void.

22. It is not in dispute that the 2nd respondents appealed against the judgment of the High Court delivered on October 29, 2015 in favour of the applicant herein videCivil AppealNo 65 of 2016 and the judgment of the High Court was overturned with costs to the 2nd respondent on June 22, 2017. Subsequent to delivery of the said judgment and other intervening proceedings, costs of the appeal were taxed by the Deputy Registrar of the Court of Appeal on November 1, 2021 as a result of which the 2nd respondent was required to pay Kshs 310,000 being further court fees before a certificate of taxation was issued on January 27, 2022.

23. The parties engaged in negotiations on how to pay the taxed costs but the negotiations broke down culminating into the execution process which the applicant now challenges on account of procedural technicalities to the effect that the costs having been taxed in an appeal by the Deputy Registrar of the Court of Appeal, the same ought to have been executed in the Court of Appeal or at worst the 2nd respondent ought to have applied for entry of judgment for the amount awarded in the certificate of costs and thereafter execute the same as a judgment of this court.

24. The costs that were taxed were as a result of a judgment of the Court of Appeal given in exercise of its appellate jurisdiction and those costs upon taxation became decretal amount which should be enforced as if it were a judgment of the High Court. This is provided under section 4 of the Appellate Jurisdiction Act as follows: -Any judgment of the Court of Appeal given in exercise of its jurisdiction under this Act may be executed and enforced as if it were a judgment of the High Court.

25. There is no law that provides that such costs should be turned into a judgment through an application in court before the execution process can commence. The fact that the 2nd respondent is entitled to costs of the appeal is not in dispute and the procedure for execution whether in the High Court or the Court of Appeal is a mere technicality which cannot be used to defeat the 2nd respondent’s entitlement to those costs. Article 159(2)(d) states: -Justice shall be administered without undue regard to procedural technicalities.

26. I am persuaded by the holding in Kiplagat Kotut v Rose Jebor Kipngok; Standard Chartered Bank & another (Garnishees) [2020] eKLR, where Hon S M Kibunja, J held as follows: -“That the court is of the considered view that the applicant should have moved the court through the record of the original suit, being Eldoret ELCNo691 of 2012, to execute the decree on costs awarded in the Eldoret Court of Appeal Civil AppealNo 31 of 2015 instead of moving the court through the Eldoret Misc. Civil ApplicationNo 145 of 2019, that is subject matter of this appeal.”

27. I have looked at the ruling in Mombasa Miscellaneous Civil Application No553 of 2016, Global Vehicles (K) Limited v Lenana Road Motors Limited where the application was brought pursuant to Order 1 rule 6, Order 5 rule 17 of the Civil Procedure Rulesas well as section 1A, 1B, 3A and 63(e) of the Civil Procedure Act and find that there is no provision that costs in an appeal should be entered as a judgment before execution.

28. This court finds that the costs taxed by the Deputy Registrar of the Court of Appeal and the certificate of the taxing officer herein is deemed to be a decree of the court from which the appeal originated pursuant to rule 113 of theCourt of Appeal Rules, 2022and the application dated August 23, 2022 is therefore dismissed with costs to the 2nd respondent.

DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS, THIS 3RD DAY OF NOVEMBER, 2022. HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of: -Ogwel- Court AssistantMr. Oluga Advocate for Petitioner – No appearanceMr. Waudo Advocate for 2nd Respondent – present onlineHON. LADY JUSTICE A. ONG’INJOJUDGE