[2022] KEHC 2762 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MAKUENI

HCCA NO. 41 OF 2019

TAHMEED EXPRESS LIMITED.......APPELLANT

-VERSUS-

JOSEPHINE NDANU........................RESPONDENT

(Being an appeal from the original judgment of Hon. C. A Mayamba in Kilungu Principal Magistrate’s Court PMCC Case No.12 of 2016 pronounced on 18th April, 2019).

JUDGMENT

1. In a ruling delivered on 18th April 2019, the magistrates’ court at Kilungu concluded as follows:-

“I do make the following orders –

a. The application is struck out on account of being sub-judice.

b. The applicant is granted a stay of sale of the proclaimed buses for a period of 30 days to allow him to put in order the application in the High Court.

c. The stay is not open to any extension in this court upon expiry.

d. Costs of the application shall be met by the applicant.

2. Aggrieved by the decision of the magistrate’s court, the appellant has come to this court on appeal through counsel Ndere & company on the following grounds –

1. That the learned magistrate erred in law and fact in proceeding to strike out the objector’s proceedings and application dated 6th February 2019 on such basis that the same was sub-judice.

2. That the learned magistrate erred in law and fact in failing to consider the factual and evidential issues raised in the objection proceedings dated 6th February 2019.

3. The appeal proceeded by way of filing written submissions and the respondent’s counsel J.A Makau & Makau Company filed submissions on 11th April 2021 while the appellant’s Counsel Nzamsa Sankale & company filed submissions on 7th June 2021.

4. I have perused and considered the submissions on both sides. I note that both counsel for the parties relied on decided case authorities.

5. The rule or principle of sub-judice has statutory under pinning in Kenya, under section 6 of the Civil Procedure Act (cap.21) which provides as follows –

6. No court shall proceed with the trial of any suit or proceedings in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceedings between the same parties, or between parties under whom they or any of them claim, litigating under the same title, wheresuch suit or proceeding is pending in the same or other court having jurisdiction in Kenya to grant the relief claimed.

7. Thus the question to be asked here is whether there were pending prior proceedings where the subject matter was substantially the same. I note that in their written submissions, the counsel for the appellant admitted that there were applications for stay pending in both the magistrate’s court and the High Court. Counsel however argued that in the magistrate’s court the substantive order sought was for the court to determine whether the vehicles proclaimed in execution of decree belonged to the objector or the judgment debtor.

8. I have perused the application in question which was struck out by the magistrate. I note that though there was a Notice of Objection to attachment filed, which suggests that the objector was the registered owner of vehicles registration No. KBN399F, KBP928E, KBP927E, KBN399, and KCE969X, the application or Notice of Motion dated 6th February 2018 did not seek any order or declaration of ownership of the vehicles. The four (4) prayers in the said application were as follows –

1. That the application be certified as urgent and service in the first instance be dispensed with.

2. That the honourable court do grant stay of execution of the judgment and decree pending the hearing and determination of the application inter parties.

3. That the warrants of attachment and proclamation levied against motor vehicle registration Numbers KBN399F, KBP928E, KBP927E, KBN399F and KCE969X respectively be hereby raised and lifted.

4. That the costs of this application be borne by plaintiff.

9. It is thus patently clear that the only substantive prayer in the application was for lifting the attachment warrants, and not determining the legal ownership of the subject motor vehicles as alleged by counsel in submissions.

10. With regard to the related application in Makueni Misc. High Court Civil Suit No. 48 of 2019, it was a Notice of Motion dated 7th February 2019, whose prayers were as follows –

1. That the application be certified as urgent and service in the first instance be dispensed with.

2. That the honourable court do grant an interim stay of execution as against the judgment and decree in Kilungu SRMCC No. 12 of 2016, Josephine Ndanu –vs- Randa Coach pending the hearing and determination of this application inter-partes.

3. That in the alternative, the status quo be maintained as against the intended party levied execution in the enforcement of the judgment and decree in Kilungu SRMCC No. 12 of 2016, pending the hearing and determination of the application inter partes.

4. That the honourable court do hereby grant interim stay of execution of the judgment and decree in Kilungu SRMCC No. 12 of 2016; Josephine Ndanu –vs- Randa Coach pending hearing and determination of the objection proceedings filed and dated the 6th February 2019 until its final determination.

5. That the costs of the application to be borne by the plaintiff/decree holder.

11. It follows from the above prayers in the above application, that the main prayer is for stay of execution of judgment or decree in Kilungu SRMCC No. 12 of 2016 pending hearing of the objection proceedings or application dated 6th February 2019.

12. It cannot thus be said that either of these applications can be said to be sub-judice, as the application dated 7th February 2019 in Makueni Hc. Misc. Suit No. 48 of 2019 was meant to protect the subject matter of the proceedings and to facilitate the hearing and determination of the objection proceedings dated 6th February 2019 in Kilungu SRMCC No. 12 of 2016, because the matters in issue were different. In my view therefore the magistrate was wrong in concluding that the principle of sub-judice was applicable herein.

13. Though the application in Makueni Hc. Misc. Suit No. 48 of 2019 was filed later on 7/2/2019, due to the hierarchy of the courts and since the orders sought were to facilitate the hearing and determination of the objection proceedings in the magistrates case, the magistrate should have stayed the objection proceedings to await the decision of the High Court, instead of determining the objection proceedings on a technicality. Such stay in my view would have the effect of upholding the principle of hierarchy of courts, and also facilitate dispensation of substantive rather than technical decisions in the administration of justice in line with the provisions of Article 159 (2) of the Constitution of Kenya.

14. Consequently, and for the above reasons, I allow the appeal and set aside the orders striking out the objection proceedings, and reinstate the application dated 6th February 2019. I also order that the Notice of Motion in the High Court dated 7th February 2019 be fixed for hearing by the applicant TAHMEED EXPRESS LIMITED within 2022, otherwise the application will stand dismissed on 31/12/2022 with costs to the respondents.

15. As the effect of this decision is to reinstate the proceedings in the magistrate’s court, interim stay is granted up to 31/12/2022, and costs will be determined in the decisions to be made in the presently pending applications.

DELIVERED, SIGNED & DATED THIS 2ND DAY OF FEBRUARY, 2022, IN OPEN COURT AT MAKUENI.

………………………………….

GEORGE DULU

JUDGE