[2020] KEHC 10366 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

COMMERCIAL AND TAX DIVISION

CIVIL CASE NO. E057 OF 2018

BETWEEN

THUNDER PLUMBING & CONSTRUCTION LTD...PLAINTIFF/RESPONDENT

AND

RAVASAM DEVELOPMENT COMPANY ............................................DEFENDANT

BEAR AFRIC KENYA LIMITED .................................... OBJECTOR/APPLICANT

R U L I N G

1. By a Notice of Motion dated 28/10/2020, the objector moved the Court under Order 21of theCivil Procedure Rulesseeking a declaration that the properties named in the proclamation vide a warrant issued on 12/10/2020 by Nairobi Connection Services Auctioneers belong to it and that they cannot therefore be subject of execution. The Objector also sought the costs of the application.

2. The application was supported by the affidavit of James Abok Odera, a Director of the objector, sworn on 28/10/2020 and the grounds set out on the face of the application. These were that; the execution commenced by the respondent arising from an ex parte judgment was prejudicial to it as the property proclaimed belongs to it, that it is a stranger to the dispute, that it has a Lease upon which it was served with the proclamation and it denied any nexus between it and the parties to the suit.

3. The respondent did not file any documents in opposition. However, M/s Nduta, Learned Counsel for the respondent orally submitted and opposed the application on points of law. She submitted that the applicant was a stranger to the suit and that the court was functus officioand had no jurisdiction to entertain the matter.

4. She further submitted that the objector ought to have filed a separate suit because the instant suit did not exist. That the orders sought were vague as they did not seek any consequential orders. There being no Lease produced, the application was but a delaying tactic by the debtor. Counsel urged that the application be dismissed with costs.

5. In reply, Mr. Gachoka, Learned Counsel for the applicant submitted that the applicant had locus standi as an objector under Order 22 Rule 51 and that they have filed a CR12 that showed that the objector had no relationship with the defendant.

6. The first issue for determination is whether this Court has jurisdiction to determine the matter. It was the respondent’s contention that, since the suit had been concluded, this Court had become functus officioas the suit no longer existed.

7. Jurisdiction goes into the heart and soul of any proceeding. In this regard, the question of jurisdiction should not only be raised at the earliest opportunity, but it must be the first issue to be resolved from the outset.

8. In Republic v Karisa Chengo & 2 others [2017] Eklr, the Supreme Court of Kenya held: -

“Jurisdiction” has emerged as a critical concept in litigation. Halsbury’s Laws of England (4th Ed.) Vol. 9 at page 350 thus defines “jurisdiction” as “…the authority which a Court has to decide matters that are litigated before itor to take cognizance of matters presented in a formal way for decision.” John Beecroft Saunders in his treatise Words and Phrases Legally Defined Vol. 3, at page 113 reiterates the latter definition of the term ‘jurisdiction’ as follows: -

“By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the Court is constituted, and may be extended or restricted by like means. If no restriction or limit is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular Court has cognizance or as to the area over which the jurisdiction shall extend, or it may partake both these characteristics…. Where a Court takes upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given”.

From these definitions, it is clear that the term “jurisdiction”, as further defined by The Black’s Law Dictionary, 9th Edition, is the Court’s power to entertain, hear and determine a dispute before it.”

9. In the celebrated Court of Appeal decision in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] Eklr,Nyarangi JA famously held: -

“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”(Emphasis added).

10. The basis of the plaintiff’s contention that the Court lacked jurisdiction was that the Court had become functus officio. That since the case had been determined, there was no case on which the current application could be predicated upon.

11. The principle of functus officio was dealt with by the Court of Appeal in Telkom Kenya Limited v John Ochanda (Suing on his own behalf and on behalf of 996 former employees of Telkom Kenya Limited) [2014] Eklr, wherein it delivered itself thus: -

“Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon…

The doctrine is not to be understood to bar any engagement by a court with a case that it has already decided or pronounced itself on. What it does bar is a merit-based decisional re-engagement with the case once final judgment has been entered and a decree thereon issued.”

12. In the persuasive decision of Bellevue Development Company Limited v Vinayak Builders Limited & Another [2014] eKLR, the court warned against overstretching the principle and advised that the order or relief sought would determine whether the court was functus officio or not. It held: -

“... care should be taken not to inadvertently or otherwise overstretch the application of the concept of functus officio; for, in all senses of the law, it does not foreclose proceedings which are incidental to or natural consequence of the final decision of the court such as the execution proceedings including contempt of court proceedings, or any other matter on which the court could exercise supplemental jurisdiction. Therefore, in determining whether the court is functus officio one should look at the order or relief which is being sought in the case despite that judgment has already been rendered by the court.”

13. This Court fully subscribes itself to the foregoing pronouncements. Jurisdiction being everything, a Court must determine the same before it makes any move whatsoever. The applicant submitted that it found locus under Order 22 Rule 51 of the Civil Procedure Rules, 2010. The same provides: -

“51 (1) Any person claiming to be entitled to or to have a legal or equitable interest in the whole or part of any property attached in execution of a decree may at any time prior to payment out of the proceeds of sale of such property give notice in writing to the court and to all the parties and to the decree holder of this objection to the attachment of such property.

(2) Such notice shall be accompanied by an application supported by affidavit and shall set out in brief the nature of the claim which such objector or person makes to the whole or portion of the property attached”.

14. It is clear from the said provision that once a decree has been issued and execution ensues, a party aggrieved by the process of execution can approach the court for appropriate orders. It does not state that such a party shall commence fresh proceedings. The issuance of a notice in my view presupposes a notice in the same proceedings that execution is taking place.

15. In this regard, I am of the view and hold that, the same court that issued the execution process is the same court which has the jurisdiction to hear and determine the challenge to the execution in the same proceedings and not fresh proceedings. The court is not rendered functus officio by having rendered a judgment or decree. Any subsequent proceedings that are appurtenant to execution are but just supplementary to the judgment and the decree which the court rendered.

16. In the present case, the objector properly lodged its Notice of Objection accompanied by the present motion. That in my view invoked the jurisdiction of this court.

17. Accordingly, I hold that the objection proceedings herein are but supplemental to the judgment and decree of this Court and that the Court is not functus officioas contended by the respondent. That objection is rejected as having no legal basis.

18. The next issue is whether the properties attached are properties belonging to the objector and not the defendant. Order 22 Rule 51 of the Civil Procedure Rules, 2010 bestows upon an Objector/applicant with the burden of proving that it is entitled to or has legal or equitable interest on the whole or part of the attached property. In this regard, the question is whether the objector has proved that the properties set out in the proclamation vide the warrant issued on 12/10/2020 by the Auctioneers belong to it.

19. The Objector has sworn an affidavit, through one James Abok Oderasworn on 28/10/2020. He stated that the Objector is the Lessee of some premises on Postbank building and had been served with a proclamation which he produced and was dated 19/10/2020. He produced a Certificate of Incorporation and Form CR 12 to prove that there was no connection between the Objector and the defendant.

20. There was no replying affidavit to the said averments made on oath. I have always known the law to be that once a statement is made on oath, the same is to be presumed to be the truth of the matter averred to unless denied or challenged on oath. It is only then that the evidentiary burden shifts back to the deponent to prove the allegations in his statement of oath.

21. In the present case, the Objector averred on oath that; it was a different entity from the defendant, that it was not a party to the dispute that had led to the judgment and decree, that it was a lessee at Post Bank Building wherein it was served with the subject proclamation. These statements were not denied. The evidentiary burden shifted to the plaintiff to prove that the entity served was the defendant and that the averments were not correct. Without any replying affidavit denying or challenging the averments of James Abok Odera,the same remained unchallenged and as the only evidence to be relied on by the Court.

22. There was a challenge by Ms. Ndutathat there was no Lease to show that the Objector was the lessee of the subject promises. In my view, once a statement has been made on oath, it can only be challenged and or denied by way of an oath and not otherwise. To my mind, that was not an effective challenge. I hold that the averment that the Objector was the lessee of some offices at Post Bank Building and that the properties proclaimed belonged to it had not been denied nor controverted.

23. In view of the foregoing, the application dated 28/10/2020 is meritorious and the same is allowed as prayed. The proclamation dated 19/10/2020 is hereby set aside.

It is so ordered.

DATEDand DELIVEREDat Nairobi this 7th day of December, 2020.

A. MABEYA, FCIArb

JUDGE