[2023] KEHC 26281 (KLR)

Tanui v Kenei & another (Miscellaneous Civil Application E104 of 2023) [2023] KEHC 26281 (KLR) (8 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26281 (KLR)

Republic of Kenya

In the High Court at Eldoret

Miscellaneous Civil Application E104 of 2023

JRA Wananda, J

December 8, 2023

Between

Viola Jemesunde Tanui

Applicant

and

Gilbert Kiptanui Kenei

1st Respondent

General Rift Valley Auctioneers

2nd Respondent

Ruling

1. This matter arises from a Judgment delivered on 16/12/2022 in Eldoret Small Claims Court Cause No. E281 of 2022 in which the 1st Respondent had sued the Applicant for breach of a motor vehicle purchase transaction. Judgment was entered in favour of the 1st Respondent at the sum of Kshs 1,000,000/- plus costs and interest, against the Applicant.

2. The Application now before this Court is the Notice of Motion dated 24/04/2023 filed through Messrs Kutto & Kaira Nabasenge Advocates. It seeks the following orders:i.………. [spent]ii.………. [spent]iii.The Honourable Court be pleased to declare the entire proceedings and any consequential order(s) arising therefrom in the Eldoret Small Claims Court vide Commercial Case No. E281 of 2022: Gilbert Kiptum Kenei vs Viola Jemesunde Tanui, null and void ab initio for lack of both original and pecuniary jurisdiction.iv.The Honourable Court be pleased to declare the entire proceedings and any consequential order(s) arising therefrom in the Eldoret Small Claims Court vide Commercial Case No. E281 of 2022: Gilbert Kiptum Kenei vs Viola Jemesunde Tanui, null and void ab initio for lack of both original and pecuniary jurisdiction.v.The Honourable Court be pleased to issue an injunction restraining the Respondents from executing and/or enforcing the Judgment/Decree in the Eldoret Small Claims Court vide Commercial Case No. E281 of 2022: Gilbert Kiptum Kenei vs Viola Jemesunde Tanui.vi.The Honourable Court be pleased to grant any order or relief that the Honourable Court may deem fit and just to grant.vii.Respondent be condemned to pay costs of this Application.

3. The Application is expressed to be brought pursuant to Articles 165(3), (6) & (7) of the Constitution of Kenya 2010, Section 1A, 1B, 3, and 3A of the Civil Procedure Act Cap 21, Section 12 of the Small Claims Court Act, No. 27 of 2015, Section 5 of the High Court (Organization and Administration) Act No. 27 of 2015 and Order 50 Rule 1 of the Civil Procedure Rules 2010. The grounds of the Application are as set out on the face thereof and it is supported by the Affidavit sworn by the Applicant, Viola Tanui.

4. In the Affidavit, the Applicant deponed that the 1st Respondent filed a claim of Kshs 1,130,000/- against her in the said Eldoret Small Claims Court on 27/06/2022, she objected to the claim and filed her Response and Counterclaim, as much as the Court admitted the claim, it lacked pecuniary jurisdiction to deliberate on the same since the issues that were raised by the 1st Respondent were as a result of engagements and transactions that relate to an amount of Kshs 4,000,000 being the proceeds from the Old Mutual Insurance Company and Kshs 5,448,156/- being a financing loan for a motor vehicle by the NIC Bank, the documents that were relied upon by the Respondent demonstrate that the claim in question is far much above the pecuniary jurisdiction of the Small Claims Court which is limited to Kshs 1,000,000/-, the matter proceeded without her being given an opportunity to testify, she only came to learn that the matter had been concluded when the Auctioneers proclaimed her properties, as much as the 1st Respondent appears to claim Kshs 1,000,000/-, the decree is to the tune of Kshs 1,115,333/-, be that as it may, the 1st Respondent had demanded for Kshs 1,400,000/- through his demand letter which is a clear indication that the Small Claims Court lacked pecuniary jurisdiction, she was represented in the matter by Messrs Seneti & Oburu Advocates whom she expected to raise a Preliminary Objection in respect to pecuniary jurisdiction and that by dint of Article 165(6) & (7) of the Constitution this Court has supervisory jurisdiction over Subordinate Court and hence can order for the said proceedings and declare them null and void ab initio.

Response 5. The 1st Respondent, through Chelangat Koskei & Co. Advocates filed the Preliminary Objection dated 24/05/2023. It was stated therein that the Application is incurably defective and an abuse of the Court process, it seeks to violate the 1st Respondent’s right to fair hearing and access to justice, it is a non-starter and that none of the Applicant’s prayers are substantiated.

Hearing of the Application 6. I directed that the Application, together with the Preliminary Objection, be canvassed by way of written submissions. I then, on 25/07/2023 directed that the Applicant files her Submissions within 14 days and that upon service, the Respondent would also have 14 days to respond with his Submissions. I then fixed the matter for delivery of Ruling on 8/12/2023.

7. Contrary to my express directions above, the Applicant’s Counsel did not file Submissions within the 14 days directed but instead, “took his sweet time” and filed on 27/11/2023, more than 4 months later. Since I had fixed the Ruling for 8/12/20/2023, which I had no intention of deferring, it means that the Respondents will now not have their 14 days window to respond or they will now have to rush to file the same within a much shorter period. Should the Respondents manage to do so, then it means that it is the Court that will be left with an even shorter period of time to prepare the Ruling. Admitting the Applicant’s Submissions filed grossly out of time will therefore prejudice the Respondents and also unnecessarily interfere with and clog the Court’s schedule. In the circumstances, I reject the Submissions filed by the Applicant. I will determine the matter on the basis of what is on record.

8. By the time of concluding this Ruling, I had also not seen any Submissions from the Respondents.

Analysis and Determination 9. Upon considering the record, including the Affidavits presented, the issues that arise for determination, in my view, are the following:i.Whether the challenge raised by the 1st Respondent meets the threshold of a Preliminary Objection.ii.Whether the proceedings of the Small Claims Court should be set aside for want of pecuniary jurisdiction.

10. I now proceed to determine the said issues.

Whether the challenge raised by the 1st Respondent meets the threshold for a Preliminary Objection 11. The law pertaining to Preliminary Objections was well set out in the locus classicus case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors ltd (1969) EA 696, in which the Court of Appeal for Eastern Africa, stated (Law JA) in part as follows:“So far as I’m aware, a Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”

12. In the same case, Sir Charles Newbold, President of the Court went on to state as follows:“a Preliminary Objection cannot be said to be such if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”

13. Applying the above principles to the facts of this case, I observe that, as drawn, the Preliminary Objection filed by the 1st Respondent is incapable of assisting the Court to make a determination on whether or not it meets the threshold. I say so because the same is couched in very general terms with no specificity.

14. I always discourage litigants from raising objections solely on ambiguous grounds such as the Application is “frivolous”, “an abuse of the process”, “fatally defective”, “incompetent”, “non-starter” and such other similar phrases without going further to also clearly state the exact defect, abuse or incompetence complained of. Pleading solely as such does not assist the Court, and the opponent is also left in a situation where he does not know what he is expected to respond to. If the intention is to use such ambiguity as “a secret weapon” to be unleashed at an opportune” time then, sorry, that will not be condoned in my Court. That would be litigation by ambush and beats the whole purpose of filing Pleadings.

15. For the said reasons, I will ignore the Preliminary Objection and not consider it in determining the Application herein.

SUBDIVISION - Whether the proceedings of the Small Claims Court should be set aside for want of pecuniary jurisdiction 16. Ordinarily, a decision of a Court of law is challengeable only by way of Appeal to a higher Court as specified by the relevant law or by way of an Application for Review filed before the same Court. In some limited circumstances, a decision can be challenged through other channels other than by Appeal. For instance, a challenge can be preferred by way of Judicial Review where procedural or administrative deficiencies or deprivation of the rights to natural justice are alleged. Similarly, a Constitutional Petition may be lodged where constitutional violations are alleged. In criminal law, there is also the jurisdiction of the High Court to exercise the power of revision.

17. This not being an Appeal or a Judicial Review Application or Constitutional Petition, it is apparent that the Applicant has been at pains to point out the jurisdiction or provision of law that would justify this Court to interrogate and set aside the Judgment of the Small Claims Court. The Applicant has given no explanation why it did not pursue the grievances now preferred by way of Appeal which is the normal and ordinary mode of challenging Court decisions.

18. The Judgment of the Small Claims Court having been delivered on 16/12/2022 and the present Application having been filed a whole 4 months later on 24/04/2023, I suspect that the reason that the Applicant has opted to approach the Court by way of the present Miscellaneous Application is because the period for filing an Appeal had long lapsed. If this is so, then I find the Application to be an abuse of the Court process meant to circumvent the known procedures. In any event, if it was a question of lapse of time, the Applicant had the option of filing an Application to seek extension of time to Appeal. She has not offered any explanation why she did not pursue that option.

19. The Applicant does not allege that she was not aware of the Judgment. To therefore sit back and then after 4 months, “wake up from her slumber” and spring up with an Application of the nature filed herein, probably only after being jolted by Auctioneers, is nothing but an abuse of the Court process. To say the least, the Applicant is being too ambitious witg the present Application.

20. The Applicant depones that she was represented in the suit by Messrs Seneti & Oburu Advocates whom she expected to raise a Preliminary Objection in respect to pecuniary jurisdiction. She appears to be arguing that because her Advocates failed to raise such Preliminary Objection, then she should not be punished for the mistakes of her Advocates. That may be so but would it be a valid ground to ignore the known avenues of Appeal or Review available to the Applicant and instead, approach a higher Court with a Miscellaneous Application seeking to set aside the Judgment? Evidently it cannot be.

21. In his Affidavit, the Applicant deponed that by dint of Article 165(6) & (7) of the Constitution, this Court has supervisory jurisdiction over Subordinate Courts and can therefore order for the said proceedings and declare them null and void ab initio. The Articles provide as follows:165(6) “The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.”

165(7) “For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.”

22. In respect to the said provisions of the Constitution, F. Tuiyot J (as he then was), in the case of Republic v Douglas Patrick Barasa & another [2014] eKLR, although dealing with a criminal case, stated as follows“13)No doubt, it is a wide power. The High Court can invoke its Supervisory Jurisdiction in circumstances where it deems it necessary to safeguard and promote the fair administration of justice. That said, some statutes provide specific instances for the exercise of supervisory authority by the High Court over Judicial or Quasi Judicial bodies subordinate to it. The power of Revision under Section 349 of the Criminal Procedure Code and the High Court’s authority in Judicial Review are examples that readily come to mind. So are such provisions to be shunted and Article 165 (6) to be deployed at all times? I have to agree with Counsel for the Respondents that where there is specific and alternative remedy then a party seeking supervisory redress must use that avenue unless it can be demonstrated that the alternative remedy is not efficacious. To invoke the use of Article 165(6) of the Constitution even where there is specific and effective statutory framework would be to diminish the importance of both the Constitutional and statutory provisions.”

23. Further, Ogola J, in the case of Fredrick Karanja Mbui v Simon Ndichu Nyiha & 2 Others [2013] eKLR, stated as follows:“It is true that the High Court has supervisory powers and jurisdiction over the lower court. This power is exercisable with caution and only where the inferior court has exceeded its jurisdiction or where a party’s constitutional rights are being or about to be abrogated through the process in that inferior court.However, there is no power granted to this court to transfer a matter from an inferior court to this court simply because the Applicant is unhappy with the decisions made by the inferior court. In such circumstances the option for the Applicant is to appeal to this court through the normal appellate procedure. This application, if granted, would amount to this court giving appellate reliefs to party through the back door.”

24. I fully embrace the above reasoning and reiterate that the powers donated under Articles 165(6) & (7) of the Constitution should only be invoked where sufficient material is presented and well argued. The powers should be exercised sparingly and only in the clearest of cases. The proper avenues available to challenge grievances against decisions of the subordinate Courts should not be circumvented in the manner suggested by the Applicant. Articles 165(6) & (7) do not mean that a Judge of the High Court should interfere with the decision-making independence of Magistrates. The High Court is well equipped to provide guidance to the subordinate Courts in its judgments on appeals filed against the decisions of the Magistrate Courts by aggrieved parties (see decision of M. Nduma J, in Kennedy Okiki & 4 others v Lake Basin Development Authority [2018] eKLR).

25. The above finding is sufficient to dispose of the Application in favour of the Respondents. However, I will still proceed to analyze the merits of the Application.

26. In determining the merits, I note that the Applicant’s major ground is that by virtue of the Counterclaim filed by her, the value of the subject matter before the Small Claims Court was in excess of the Kshs 1,000,000/- pecuniary jurisdiction limit of that Court. According to the Applicant therefore, the Court lacked jurisdiction to handle the suit.

27. First, it is true, as I note from the pleadings, proceedings and even the Judgment exhibited that the 1st Respondent sought recovery of sums of money in excess of Kshs 1,000,000/-. However, noting that the pecuniary jurisdiction of the Small Claims Court is limited at the sum of Kshs 1,000,000/-, the 1st Respondent waived and/or forfeited his claims for any sums beyond Kshs 1,000,000/-. Upon being satisfied that the 1st Respondent had proved his case, the trial Court, obviously being alive to the pecuniary limit on jurisdiction, only awarded Judgment up to the sum of Kshs 1,000,000/-, nothing more. Of course, interest and costs were also awarded but these are not items to be included in computation of the Kshs 1,000,000/- pecuniary jurisdiction limit.

28. Regarding the Counterclaim, I note that it was for a sum of Kshs 980,000/-. I also note from the proceedings exhibited that on the date of the trial, Advocates for both parties confirmed that they were ready to proceed for the hearing with one witness each. Upon her Advocate’s request, the Applicant was allowed to testify virtually. The 1st Respondent then gave his evidence and closed his case. However, when the Applicant’s turn came, she was nowhere to be found. The Court therefore proceeded to close the trial. The Counterclaim was therefore never canvassed, no evidence was led on it and none of the documents in support of it were admitted in evidence. The Counterclaim therefore remained just a pleading, nothing more. Coupled with the fact that the Court eventually gave Judgment only up to Kshs 1,000,000/- within her jurisdiction, I do not find any breach of the pecuniary jurisdiction by the Small Claims Court.

29. I also take judicial notice of the emerging tactics invented and employed by sly Respondents to frustrate Claimants in proceedings before the Small Claims Court. One of these tactics is to file and plead a frivolous Counterclaim of an amount in excess of the sum of Kshs 1,000,000/-. Such Respondents are very much aware that such Counterclaims stand no chance of succeeding but still plead such solely for the purpose of ousting the jurisdiction of the Small Claims Court. I am not making a determination that this is what happened in this case but I am just raising the point that mere pleading of a Counterclaim of an amount in excess of Kshs 1,000,000/- should not necessarily be used as a sole reason to oust the jurisdiction of the Small Claims Court unless and until the same is taken further and canvassed during the trial. Even where the Counterclaims is so canvassed at the trial, the issue of jurisdiction may still not arise until the Court, while preparing the Judgment, determines that the amount that it intends to award is in excess of Kshs 1,000,000/-.

30. I find company in my view above from the decision of Majanja J delivered in the case of Alcott Wiz Trading Co., Ltd & 2 others v Jotun (K) Limited (Miscellaneous Application E091 of 2023) [2023] KEHC 2742 (KLR) (Commercial and Tax) (24 February 2023) (Ruling). In that case, while declining to transfer a suit from the Small Claims Court to the Magistrate’s Court on the ground that a Respondent had pleaded a Counterclaim for a sum of Kshs 1,000,000/-, the Judge stated as follows:“5. I have considered the grounds proffered by the Applicants and I hold as follows. It is not in doubt that the Small Claims Court is a court of limited jurisdiction. Its pecuniary jurisdiction is limited to Kshs. 1,000,000. 00. As regards the Respondent’s claim, the court has jurisdiction to deal with the claim hence it is erroneous for the Applicants to argue that the court lacks jurisdiction to deal with the Respondent’s claim.6. The Applicants, on the hand, have filed a counterclaim that is beyond the pecuniary jurisdiction of the court. A counterclaim is for all intents and purposes a separate suit and by filing a counterclaim that is clearly outside the pecuniary jurisdiction, the Applicants invite the court to exercise its peremptory powers to strike out the counterclaim. In addition, Rule 14 of the Small Claims Court Rules gives a respondent who wishes to file a counterclaim whose value exceeds the pecuniary jurisdiction of the court various options. It provides as follows:14(1)A respondent who has a counterclaim exceeding one million shillings may-a.Abandon that part of the counterclaim exceeding one million shillings;b.Pursue his or her counterclaim in the proceedings and recover the amount not exceeding one million shillings; orc.File a separate claim in the Magistrates’ Court to recover the whole of the amount counterclaim.(2)A respondent who abandons that part of the counterclaim exceeding one million shillings shall state in his or her response that the amount in question is abandoned. (Emphasis mine)7. In this case, the Applicants invite the court to transfer the suit before the Small Claims Court to the Magistrates Court on account of a counterclaim filed in a court without jurisdiction. It is now a settled principle that the court will not transfer a suit filed in court without jurisdiction to another court of competent jurisdiction. ...………………………………………………..9. Since the Counterclaim, which for all intents and purposes, forms the basis of the application to transfer the suit, I am constrained to reject the application dated 7th February 2023. It is dismissed but with no order as to costs.”

31. It should be recalled that as was held by Kizito Magare J, in the case of Biosystems Consultants v Nyali Links Arcade (Civil Appeal E185 of 2023) [2023] KEHC 21068 (KLR) (31 July 2023) (Ruling), the Civil Procedure Act and Rules do not apply to the Small Claims Court, and that even the application of the Evidence Act was severely restricted by Section 32 thereof. The grievances highlighted by the Applicant, insofar as they may to some extent touch on matters of procedure, may not therefore hold water.

Final Orders 32. The upshot of my findings above is that the Application fails. Consequently, the Notice of Motion dated 24/04/2023 is hereby dismissed with costs to the 1st Respondent.

DELIVERED, DATED AND SIGNED AT ELDORET THIS 8TH DAY OF DECEMBER 2023. ...................WANANDA J.R. ANUROJUDGE