[2022] KEHC 26932 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL DIVISION

CIVIL APPEAL NO. E122 OF 2021

TATU CITY LIMITED..................APPELLANT/RESPONDENT

VERSUS

CALLA LIMITED.........................RESPONDENT/APPELLANT

RULING

1. The amended application dated 6th April 2021 by Calla Limited(hereafter the Respondent) seeks to strike out the notice of motion and the memorandum of appeal dated 10th March, 2021 filed byTatu City Limited (hereafter the Appellant) and by which the Appellant is seeking in part to stay execution of the exparte judgment entered in favour of the Respondent on 30. 10. 2020 in Nairobi CMCC No. E119 of 2020. The Respondent’s motion is expressed to be brought under Section 3A of the Civil Procedure Act, Order 2 Rule 15 and Order 51 Rule 1 of the Civil Procedure Rules and is premised on grounds among others, that the appeal is time-barred having been filed outside the prescribed time for filing appeal and the motion itself incompetent and a waste of the court’s time; and that the appeal and motion are frivolous, vexatious, misleading and are calculated to prejudice the Respondent by denying it the fruits of its judgment and decree in the lower court.

2. The motion is supported by an affidavit of Stephen Anthony Aldridge, who describes himself as a director of the Respondent. Setting out the history of the matter, he asserts that the Respondent obtained a regular default judgment against the Appellant in respect of a claim for Kshs.20,000,000/- in the lower court after the Appellant failed to enter appearance or file defence despite due service; that thereafter the Respondent obtained a decree and proceeded to execute by way of garnishee proceedings which were met by the Appellant’s motion to set aside the default judgment ; and that the garnishee proceedings and Appellant’s motion were mid-stream when the Appellant approached this Court to appeal a garnishee order nisi that has yet to be declared absolute , which action he views as unjust, incompetent and an abuse of the process of the court.

3. The deponent further states that the judgment appealed from was delivered on 30th October, 2020 and the Respondent did not seek leave of the court prior to the filing of the memorandum of appeal dated 10th March, 2021 out of time. In conclusion he asserts that the appeal is time-barred, and motion of even date is incompetent, prejudicial, an abuse of the court process and will occasion injustice to the Respondent.

4. The motion was opposed through the replying affidavit sworn by Christopher John Barron. He describes himself as the Country Head of the Appellant. He takes issue with the Respondent’s motion which he views as an abuse of the court process, intended to delay, derail and subvert the course of justice by convoluting the issues between the parties, whereas the Respondent has not responded to the Appellant’s motion herein. He equally sets out the background to the appeal herein and deposes that the appeal is not time-barred having been filed two days after the order of 8. 3.2021 and besides, he asserts, leave to appeal was sought orally before the subordinate court and in any event the right is enshrined in Article 50 (2) (q) of the Constitution. The deponent avers that by its amended motion, the Respondent is seeking to mute the Appellant’s quest for justice before the appellate court and urges that the said motion be dismissed.

5. The motion was canvassed through written submissions followed by oral highlighting. Counsel for the Respondent relying on the provisions of Section 79 G submitted that the appeal herein is time-barred as it relates not to the garnishee order nisi that is yet to be made absolute, but to the judgment of 30th October 2020 for which no leave had been sought.

6. Regarding the order nisi, the Respondent’s counsel appeared to suggest, citing the provisions of Order 23 Rule 1 of the Civil Procedure Rules that since it was not final, it was not ripe for appeal. Counsel proceeded to address the merits of the said order by asserting that it was properly issued. In this regard, counsel relied on two cases, namely, Otieno Ragot & Co. Advocates v City Council of Nairobi [2015] eKLR and Ngaywa Ngige & Kibet Advocates v Invesco Assurance Co. Ltd & Diamond Trust Bank (Garnishee) (2020) eKLR. She asserted that the Appellant’s motion and memorandum of appeal represent an abuse of the court process and should be struck out with costs.

7. On part of the Appellant , it was submitted that by dint of Order 51 Rule 14 the amended motion was an abuse of the court process as the Appellant ought to have filed a notice of preliminary objection and/ or grounds of opposition in response to the Respondent’s motion; that while invoking the provisions of Order 2 Rule 15 of the Civil Procedure Rules, the Respondent has failed to specify the precise grounds upon which the motion is anchored; that the appeal relates to the order dated 8th March, 2020 and not the default judgment of 30th October, 2020 and consequently the appeal was filed within time. Taking time to advert to some of the merits of the appeal, counsel asserted that the same challenges the jurisdiction of the subordinate court and regularity of the garnishee order nisi issued on 8th March 2021. The Court was urged to dismiss the amended motion.

8. The Court has considered the amended motion, rival affidavits and submissions. The amended motion is primarily brought under the provisions of Order 2 Rule 15 of the Civil Procedure Rules (CPR) which provides as follows:

“(1) At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that— (a)it discloses no reasonable cause of action or defence in law; or

(b)it is scandalous, frivolous or vexatious; or

(c)it may prejudice, embarrass or delay the fair trial of the action; or

(d)it is otherwise an abuse of the process of the court, and may order the suit to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

(2)No evidence shall be admissible on an application under subrule (1)(a) but the application shall state concisely the grounds on which it is made.”

9. The Appellant has correctly stated that the amended motion does not disclose the precise ground in the above provision upon which the motion is predicated. Nevertheless, the actual grounds on the face and body of the motion and submissions appear consistent with the grounds enumerated in Order 2 Rule 15 (1) (b), (c) and (d) of the CPR. The Respondent’s failure to invoke on the face of the amended motion the precise provision relied on is not fatal. The second objection raised by the Appellant was to the effect that the Respondent could have filed a replying affidavit and or notice of preliminary objection and or grounds of opposition pursuant to the provisions of Order 51 Rule 14 (1) to the Appellant’s memorandum of appeal, and motion rather than respond by filing the instant application. The two options were available to the Respondent under the Rules, even though the option of a replying affidavit and notice of preliminary objection may have been a more efficacious approach than filing a motion in the circumstances of the case.

10. The parties have presented vigorous arguments as to the merits of the appeal, especially regarding regularity of the proceedings resulting in the garnishee order nisi of 8th March 2021 and whether the order itself was ripe for appeal. These matters do not belong to the applications at hand, but to the appeal, when eventually argued. Suffice to say that it appears ex facie from a perusal of the lower court proceedings that the subordinate court may not have strictly complied with the provisions of Order 23 Rule 1 of the CPR in this instance.

11. In my view, the amended motion turns on two related questions. First, what is the subject matter of the appeal? And secondly, the competence of the appeal. The Respondent has asserted that the subject of the appeal herein is the lower court judgment of 30th October 2020 rather than the garnishee order nisi of 8th March 2021. A perusal of the grounds listed in the memorandum of appeal on record appears to support in part, the Respondent’s assertion that the principal subject of the appeal is indeed the garnishee order nisi of 8th March 2021.

12. However, prayer (b) therein seeks the setting aside of the judgment of the lower court dated 30th October 2020. Pursuant to the provisions of section 79 G of the Civil Procedure Act, that prayer could not be entertained without leave being granted to the Appellant to appeal the said judgment out of time. No such leave has been demonstrated or asserted. Besides, it appears that the Appellant has already filed an application to set aside the said judgment, on grounds including want of jurisdiction, a ground also raised in the instant appeal. The application had already been canvassed before the lower court and was pending ruling at the time of filing this appeal.

13. Equally, by virtue of the provisions of Order 43 Rule 1 (l) an appeal in respect of garnishee proceedings only lies as of right from an order made under Order 23 Rule 7 of the CPR, and in all other instances, leave is required to appeal. The Appellant by asserting before this court that such leave was orally sought and granted in the lower court admits that indeed leave was required to appeal the garnishee order nisi of 8th March 2021. The assertion is disputed by the Respondent. The onus was upon the Appellant to tender a copy of the order or proceedings in which leave was granted to appeal the order of 8th March 2021. No such order was annexed to the Appellant’s replying affidavit or cited in the memorandum of appeal. In the absence of such evidence, it appears that the appeal herein may not be competently before this court and is liable for striking out along with the accompanying motion.

14. I associate myself with the sentiments of Sewe J, in Edith Wairimu Njoroge v Brooks Holdings Co. Ltd [2018] e KLR that where an appeal does not lie as of right from an order but only with leave, such leave “was a prerequisite to the assumption of jurisdiction by this court on appeal.” In Kakuta Maimai Hamisi v Peris Pesi Tobiko & 2 Others [2013] e KLR the Court of Appeal held that the right of appeal goes to the court’s jurisdiction, is a fundamental matter and that the question of the absence of statutory conferment of such right is not a mere technicality.

15. Notwithstanding the foregoing, the Courts have stated often enough that the striking out of a pleading is a draconian act, reiterating the wisdom in D.T. Dobie & Co. (Kenya) Ltd. Vs Joseph Mbaria Muchina & Another (1980) eKLRto the effect that:

“The court ought to act very cautiously and carefully and consider all facts of the case without embarking upon a trial thereof, before dismissing a case for not disclosing reasonable cause of action or being otherwise an abuse of court process. At this stage the court ought not to deal with any merits of the case for that it is a function solely reserved for the judge at the trial as the court itself is not surely fully informed so as to deal with the merits “without discovery, without oral evidence tested by cross examination in the ordinary way.” (Seller, L.J(Supra)). As far as possible, indeed not at all of the action or make it uncomfortable or restrict the freedom of trial judge in disposing off the case in the way he thinks right.... A court of justice should aim at sustaining a suit rather than terminating it by summary dismissal. Normally a lawsuit is for pursuing it.

No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it”.

16. Section 79 G of the Civil Procedure Act allows a party to seek leave to appeal out of time, either before filing or after filing a memorandum of appeal. Similarly, the provisions of section 75(1) (h) of the Civil Procedure Act as read with Order 43 Rule 1 sub-rule (1) and (2) of the CPR allow a party to seek leave to appeal an order respecting which the right of appeal is not automatic. However, under sub-rule 3 the application for leave must in the first instance be made to the court making the order.

17. The Court of Appeal in Vishva Stone Suppliers Company Limited v RSR Stone (2006) Limited (2020) eKLR in emphasizing the right of appeal stated:

“Turning to the request to allow the applicant to exercise his now undoubted constitutionally underpinned right of appeal, the position is…. crystalized …. in the case of Richard Ncharpi Leiyagu vs. IEBC & 2 Others (supra); Mbaki & Others vs. Macharia & Another [2005] 2EA 206; and the Tanzanian case of Abbas Sherally & Another vs. Abdul Fazaiboy, Civil Application No. 33 of 2003; for the holding inter alia that:

(i) the right to a hearing is not only constitutionally entrenched but it is also the corner stone of the Rule of law;

(ii) the right to be heard is a valued right; and

(iii) that the right of a party to be heard before adverse action or decision is taken against such a party is so basic that a decision which is arrived at in violation of it will be nullified, even if the same decision would have been reached had the party been heard, because, the violation is considered to be a breach of natural justice;”

18. In order to give meaning to the constitutional right of appeal, and in the interest of justice, this Court will, in lieu of striking out the appeal herein allow 30 days within which the Appellant shall take the necessary steps to regularize the same, and in default, the appeal will stand as struck out. In the meantime, there will be an order that will last for 30 days, to maintain the status quo obtaining as of today’s date in the garnishee proceedings in the lower court. The costs of the amended motion are awarded to the Respondent in any event.

DELIVERED AND SIGNED ELECTRONICALLY ON THIS 10TH DAY OF FEBRUARY 2022

C.MEOLI

JUDGE

In the presence of:

For the Appellant: Ms. Hannan h/b for Mr Ahmednassir, SC

For the Respondent: Ms Okoth

C/A: Carol