REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MURANGA

MISCELLANOUS APPLICATION NO E 50 OF 2021

JACKLINE NYOKABI KARARA.................................................1^ST RESPONDENT

VERSUS

JEREMIAH KARIUKI KAGEMA............................................................APPLICANT

AND

ELIUD CHAI T/A CHADOR AUCTIONEERS............................2^ND RESPONDENT

DOMINIC MUNENE NJOGU...................................................INTERESTED PARTY

RULING

1. By a Chamber Summons under certificate of urgency dated 14^th day of September 2021, the applicant moved the court for order of stay of execution of the judgement / decree issued on the 14^th September 2021 pending the hearing and determination of this application.

2. The applicant further sought order for stay of execution of the judgement and decree issued on 23^rd day of august 2021 pending the full hearing and determination of the application filed at Kigumo vide CMCC no 71 of 2021 dated 7^th September 2021.

3. The applications were grounded upon the grounds on the face thereof and for the purposes of this ruling can be summarized that the same to be admitted for hearing during the courts recess  as the applicant was apprehensive that the decree holder was likely to levy execution after the expiry of the  thirty days stay that was granted by the trial court and should that be done, the applicant will not be able to recover the decretal sum as the respondent had not disclosed any evidence of his financial status thereby rendering the  intended appeal nugatory.

4. The application was supported by an affidavit sworn by one SARAH GACHERU , the applicants Advocate in which she deposed that the respondents had illegally and erroneously embarked on the process of execution by attaching the applicants motor vehicle registration no KCP369Q and KCF 861X which were then scheduled for sale by public auction on 17^th September 2021 for which the applicant had filed an application dated 7^th September 2021  to set aside the ex  parte judgement therein and sought for stay of execution , which the court declined to grant, upon which the respondent attached the applicants motor vehicle on 9^th September 2021.

5. That when the applicant filed another applicant upon the new facts, the trial court declined to grant the orders sought and instead fixed the cause for hearing on 16^th September 2021 whereas the Auctioneer had in violation of Order 12(1) (b) of the Auctioneers rules had not issued any proclamation, thereby leading to a likelihood of the applicant suffering irreparable loss and prejudice should the attached motor vehicles be sold.

6. It was finally deposed that the applicant was willing to deposit security for the decretal sum as condition for the grant of the orders sought.

7. The application was opposed through grounds filed on 22^nd September 2021 in which it was contended that the application was a gross abuse of the court process as the applicant had instituted two similar applications before the trial court in which he sought similar prayers, thereby offending the provision of section 6 of the Civil Procedure Act, by being sub judice.

8. It was contended that no decree had been sent to this court for execution and as such the orders sought were outside the jurisdiction of this court as provided for under Order 22 Rule 22.

9. While the application was pending, the applicant on 23^rd September 2021 filed another application seeking extension of interim orders and unconditional release of the attached motor vehicles herein.

The applicant further sought for the orders setting aside the ex parte judgement and the proceedings leading thereto with leave being granted to the applicant to defend the cause.

10. This application was supported by an affidavit sworn by the applicant Jeremiah Kariuki Kagema in which it was deposed that he was the registered owner of the subject motor vehicles which were attached without proclamation and that unless the warrants of attachment were lifted he would suffer loss, it was contended that the Auctioneer did not serve him with the warrants of attachment and proclamation seven days prior to attachment as required under law, as such the execution was irregular.

11. It was his further contention that he had never been served with the summons to enter appearance and or pleading relating to the suit before the lower court as such the ex parte judgement entered against him was irregular as he only came to learn of the judgement through his insurers through a notice dated 26^th august 2021 and that when his application came up for hearing inter- partes on 22^nd September 2021, the interim orders obtained therein were not extended due to none attendance of his Advocate, having been involved in an accident , and therefore the misfortunes of his Advocate should not be visited upon him.

12. Directions were issued upon the said application on 27^th September 2021and the same fixed for hearing on 6^th October 2021 on which date the applicant filed yet another application dated 4^th October on the ground that the Auctioneer had sold the subject motor vehicles illegally without advertising the same for sale, he therefore sought the orders directed to the Auctioneers to reverse the illegal sale of the subject motor vehicles and to unconditionally release the same to the applicant.

13. He further sought for the setting aside of the ex-parte judgment, the proceedings and subsequent orders issued thereon to enable him defend the suit and offered as security bank guarantee.

14. This application was supported by an affidavit sworn by the applicant in which he stated the plaintiff respondent had embarked on the process of execution of the judgement herein and had sold motor vehicle registration number KCF 861X at a sum of ksh 700000 without advertising the same for sale and was in the process of selling the second motor vehicle, which amount raised was not enough to cover the total decretal sum.

15. When the applications were placed before me on 6^th October 2021, I issued directions that all the three applications be heard together and ordered the auctioneer to deliver the subject motor vehicle to Nyeri Police Station pending the hearing of the applications.

16. On the 12^th October 2021 , the alleged purchaser of the subject motor vehicle filed an application in which he sought to be joined as a party to the procedings and for the Honourable Court to vacate and or vary the Orders issued on 30^th September 2021, on the grounds that the respondent legally held a public auction on 1^st October 2021 , wherein at the fall of the hummer  he was declared the highest bidder after which he took possession of the subject motor vehicle and had since improved the same at a sum of Ksh. 78750.

17. It was his contention that he was a bonafide purchaser for value and that at the time of the sale he had no knowledge of any court order stopping the sale.

18. In response to the applications, the 1^st Respondent JACKLINE NYOKABI KARARA, filed a replying affidavit in which he deposed that that the supporting affidavit was incurably defective as they were not sealed and marked.

It was further contended that the application was filed in the wrong court as the court with jurisdiction should have been the Chief Magistrates court and therefore the applicant was forum shopping as the applicant had not given any reasonable explanation on why he abandoned the two applications filed before the lower court, which court entered the ex- parte judgment which is sought to be set aside.

19. The 2^nd Respondent ELIUD CHAI WAMBU responded to the application by an affidavit sworn on 7^th October 2021 in which he deposed that he received instruction to attach and sell by public auction the applicants goods in execution of the judgement of the honourable court at Kigumo Civil suit no E071 of 2021to realize the decretal sum of ksh. 4,353,986 and on 26^th august 2021 proceeded to serve the judgement debtor with the warrants and proclamation notice who he duly received but declined to serve.

20. They identified two motor vehicles which he attached and advertised for sale by public auction on 17^th September 2021, but could not proceed since he was served with a court order dated 16^th September 2021 until 22^nd September 2921, when he was informed that the order was not extended and thereafter he proceeded to sell the same at 11:40 am before he was informed by phone of an order of statuesque at 1.00pm and he could only stop the sale of the second motor vehicle.

21. To the application by the auctioneer, the applicant filed grounds of opposition in which he stated that the application was misconceived and bad in law as it failed to disclose material and relevant information and was an abuse of court process.

SUBMISSIONS

22. Directions were issued that the applications be heard by way of written submissions and on behalf of the Applicant it was submitted that there were two applications for stay of execution of the judgement of the lower court and setting aside the same and allow the applicant to defend the same and for the unconditional release of the attached motor vehicles.

23. It was submitted that Order 10 rule 11 of the Civil Procedure Rules states that where judgment has been entered under the rule, the court may set aside or vary such judgement of terms that are just, it was contended that this court has unlimited discretion to set aside or vary a judgement entered in default and that the above rule was not specific as to which court should set aside ex parte judgement and therefore the application was rightly before this court, the trial court having declined to grant the applicant orders of stay of execution. It was submitted that there are no limitations on the judge’s discretion to set aside or vary an ex parte judgement for which the cases of ATEL vs EAST AFRICA CARGO HANDLING SERVICES LTD (1974) EA 75 and JAMES KANYIITA NDRRITU & ANOTHER Vs MARIOS PHILOTAS GHIKAS & ANOTHER [2015] e KLR were cited in support.

24. It was submitted that there was no delay in bringing the application, in that the Respondent filed suit on the 25^th march 2021 and when the defendant received Advocate received instructions on 20^th April 2021, interlocutory judgement had been entered and that the matter proceeded  for formal proof and judgement delivered on 23^rd august 2021, it was contended that when the applicant filed an application dated 7^th September 2021 I the lower court, the honourable court declined to grant order for stay of execution at which instance the respondent attached the subject motor vehicles prompting the filing of a second application, which the trial court also declined to allow.

25. It was contended that it is the action by the trial court not to grant orders sought that led to the filling of the applications herein initially seeking stay of further execution, I was contended that the applicants counsel was not guilty of delay and that the mistake on the part of the applicant’s former advocates should not be visited upon him as was held in the case of BELINDA MURAD &6 OTHERS vs AMOS WAINAINA [1978] KLR and PHILIP CHEMWOLO &ANOTHER vs AUGUSTINE KUBRDE [1982-88] KLR.

26. It was the applicant’s submission that the attached statement of defence raised valid triable issues as the accident the subject matter of the trial involved two motor vehicles in which motor vehicle registration number KBA 750 P rammed onto the applicant’s motor vehicle for which it should have been blamed and held liable, therefore the issue of involvement and liable are triable issues which ought to be determined on merit. and unless and until the court has pronounced itself on merit, it has powers to revoke the expression of its coercive power where that has only been obtained by failure to follow any rules of procedure, for which the following cases were submitted in support FREDRICK CHEGE KAMENWA vs ARON K KANDIE civil case no 3399of 1992 and WINNIE WAMBUI KIBINGE &2 OTHERS vs MATCH ELECTRICAL LTD CIVIL CASE NO 222 of 2010.

27. It was submitted that court of Appeal in PHILIP KEIPTO AND MUMIAS SUGAR CO LTD vs AUGUSTINE KUBENDE (1982-1988) 1 KLR in considering whether the judge rightly exercised his discretion in refusing to set aside the judgement stated that the court has unlimited discretion to set aside judgement on terms and where a regular judgement has been entered, the court would not usually set aside the judgement unless it is satisfied there were triable issue and that there was triable issue on contributory negligence which would affect the quantum, this position was submitted finds support in the case of TREE SHADE MOTORS LTD vs DT DOBIE & ANOTHER (1995-1998) 1 EA 324.

28. It was finally contended that the plaintiff shall suffer no prejudice should the judgement be set aside and that under article 50 (1) of the constitution, the applicant is entitle to right to fair hearing while under article 159(2) (a) and (b)the courts are to do justice without undue regard to technicalities and that since the applicant was willing to provide security the plaintiff will suffer no prejudice with the main aim of the court being to do justice to all parties as was stated in SHAH vs MBOGO (1974) EA.

29. On the issue of the attached motor vehicle, it was submitted that the same was done in violation of rule 12(1) (b) of the Auctioneers rules and therefore the same has not come to court with clean hands. it was therefore submitted that the applicant had established a prima facie case and the ex-parte judgement delivered on 23^rd august 2021 in KIGUMO CMCC NO 71 of 2021 be set side.

30. On behalf of the defendant/ respondent, it was submitted that the applications were erroneously and against the lawful procedure filed before this honourable court as this court can only hear the matter as an appellate court , it was contended that the court with jurisdiction to set aside the ex parte judgement is the court the court at which the applicant was supposed to enter appearance and it is only if the applicant was dissatisfied with the order issued thereat that it can approach this court by way of an appeal.

31. It was submitted further that the applications offend the mandatory provisions of Order 6 of the civil procedure rules by being subjudice as was stated in the case of AFRICA MANAAGEMENT COMMUNICATION LTE vs AIRTEL NETWORK KENYA LTD [2020] eKLR and UHURU HIGHWAY DEVELOPMENT LTD vs CENTRAL BANK OF KENYA &2 OTHERS [1996] eKLR where it was stated that the doctrine of res judicata and subjudice applies to applications.

32. It was submitted that the affidavit in support of the application dated 4^th October 2021 was incurably defective as the annexures thereto were on securely marked as was stated in the case of FRANCIS A MBALANYA vs CECILIA N WAMAE [2017] eKLR and SOLOMON OMWENGA OMACHE & ANOTHER vs ZACHARY O AYIEKO &2 OTHERS [2016] e KLR.

33. It was further contended that the applicant was forum shopping as no reasonable ground was given why he abandoned the applications which he had rightly filed before the KIGUMO MAGISTRATES COURT, in support of this preposition reliance was place on the case of FORTIS TOWERS MSNAGEMENT LTD &ANOTHER vs TRADEMARK COMPUTERS LTD [2018] e KLR and SATYA BHAMA GADHI vs DIRECTOR OF PUBLIC PROSECUTIONS &3 OTHERS [2018] e KLR.

34. It was finally submitted that the subject motor vehicles were lawfully sold before any orders thereon were served to enable the auctioneer stop the sale and that upon service of the order the same did not proceed with the sale of the second motor vehicle and the court was urged to dismiss the applications

35. On behalf of the interested party, it was submitted that the sale was lawful and that the same had no duty to conduct due diligence in an action that had been duly advertised as was stated in the case of J18ACKSON KIPNGETICH KOMEN v K REP BANK LTD &2 OTHERS [2018] e KLR where the court held that there was no duty placed on such a purchaser where he participates in an auction that has been duly advertised.

It was contended that he was therefore a bonafide purchaser for value under the provisions of section 23(2) of the Sales of Goods Act

DETERMINATION

36. While these applications were pending determination, the parties herein entered into a consent order dated 16^th November, 2021 in which the applicant consented to pay to the interested party a sum of ksh 1,032,550 in full and final settlement of this matter in relation to motor vehicle registration number KCF 861 F, upon receipt of which the same was to be released to the applicant, which consent order was adopted by the court on 9^th day of December 2021.

37. My understanding of the said consent order is that it disposes of the application by the interested party filed on 12^th October 2021 and the applicants prayer for the release of the said motor vehicle , which technically disposes of the application dated 4^th October 2021 in which the same sought for those orders and should I be right in this understanding , this therefore leaves the court with the issue of stay of execution and setting aside of the ex -parte judgement issued by the lower court.

38. From the material placed before me, I have identified the following issues for determination:

a) Whether this Honourable court has jurisdiction to determine the application as filed in the first instance

b) Whether the application as filed is subjudice

c) Whether the applicant has made up a case for the grant of the orders sought

d) What orders should the court grant in the circumstances of this case.

39. On the issue of jurisdiction, the following facts are not disputed, that the plaintiff respondent filed suit against the applicant at KIGUMO CHIEF MAGISTRATES COURT being civil suit no E071 of 2021 wherein the same obtained interlocutory judgement and proceeded for formal proof and thereafter obtained judgement ex parte against the applicant.

40. It is also not in dispute that the same filed two applications before the lower court which applications are still pending determination as can be gleaned from the affidavits placed before this court, the question which this court has to answer is whether it can assume an original jurisdiction in a matter pending before the lower court?

41. My answer to that question, is that this court cannot assume jurisdiction to set aside a judgment of a matter which is pending before the lower court. The applicant can only approach this court in exercise of it appellate jurisdiction and am therefore not persuaded by the submission of the applicant that Order 10 Rule 11 of the civil Procedure rules does not define the court , taking into account the fact that order 10 rule 4 empowers the court to enter interlocutory judgement and therefore the court that can lawfully set aside the said judgement in the first instance is the court that issued the interlocutory or ex-parte  judgement in the first place.

42. It is only the trial court which is best placed in the first instance to look at the issue of the service of summons  and to decide whether or not the judgement was regular and to look at the applicants possible defence and make  determination thereon, before this court looks at it on appeal should the applicant be dissatisfied with the determination of the lower court as in the absence of the proceedings from the lower court as presented in this application, it will be a miscarriage of justice for this court to grant the orders sought.

43. Having confirmed that there are two applications pending determination by the lower court and the applicant having not approached this court by way of an appeal I am persuaded by the submissions by the respondent that the applications herein are subjudice as they offend the provisions of section 6 of the civil procedure rules which states that no court shall proceed with the trial of a suit or procedings in which the matter in issue is also directly and substantially in issue in previously instituted suit or proceedings between the same parties and since the applications in the lower court are still pending I find and hold that this application is subjudice and or resjudicata if the same has been ruled upon by the lower court as at the time of this ruling.

44. On the issue raised by the respondent that the applicant is forum shopping , I am unable to make a finding thereon, in view of the applicants contention that the trial court declined to hear his applications, having taken into account the constitution under Article 165(6) which gives this court supervisory jurisdiction over the subordinate courts and over any person body or authority exercising a judicial or quesi- judicial function but not superior courts and it is only that the applicant used the wrong procedure to approach the court.

45. In view of the matters stated herein, I find no merit on the applications by the applicant which I hereby dismiss and in exercise of the supervisory jurisdiction herein direct that the applications pending before the lower court be fixed for hearing within the next seven days from the date herein and pending the fixing of the said applications for hearing, I herein grant a temporary stay of execution for a period of   14 days from the date of this ruling.

46. On the issue of cost the same shall bide the outcome of the applications pending before the lower court and it is ordered.

SIGNED, DATED AND DELIVERED at MURANGA THIS 8^th DAY of FEBRUARY 2022

J. WAKIAGA

JUDGE

In the presence of