REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

 AT MERU

 CIVIL APPEAL NO. EO38 OF 2020

GERALD MUGIIRA.....................................................................................APPELLANT

VERSUS

SALESIO ELITE.......................................................................................RESPONDENT

JUDGMENT

1. The Appeal proceeded to hearing by way of written submissions ordered on 22/11/2021 upon the court being satisfied of service upon counsel for the 1^st Respondent on 1/11/2021 via an Affidavit of Service sworn by Joseph Kithinji M’Kiambati, a licensed Court Process Server, on 1/11/2021 with hearing notice dated 29/10/2021 returned with acknowledgement stamp by M/s Kiogora Mugambi & Co. Advocates dated 1/11/2021.

2.  The Appellant filed written submissions dated 23/11/2021. The Respondent did not file submissions despite notice given by the Appellant upon the Court directions of 22/11/2021, and service of the Appellant’s submissions on 23/11/2021 as sworn in the Affidavit of Joseph Kithinji Kiambati, Process Server, of 24/11/2021.

3. In the submissions dated 23/11/2021, the Appellant has raised the issue of irregularity in attachment of his property, among other grounds the particulars whereof are fully set out as follows:

“WRITTEN SUBMISSION

Your Lordship it is my humble submission that the defendant proved his case on balance of probability and therefore I urge the court to set aside the findings of the lower court and compensate me for my property illegally sold under the following grounds.

(a) That there was an irregularity in attaching my property.

(b) The sale by Auction of my property did not meet the threshold of Cap.21 order 22 rule 57 sub-rule (1) (2) (a)(b)(c)(d) and (4) of civil procedure rule of2010.

(c) After the attachment of my property no notice of fourteen days was issued before the Auction.

(d) No recording of sale proceeds was done by the defendant to ascertain if the claim was satisfied.

(e) The Auction was illegal and further I was not given time to state my case or defence before the court.

- I was not served with any document purported to have been issued by the court to attached my property.

- An order to OCS Meru Police Station was issued ex-party and none of them served any legal order to open the premises.  That the Law is very clear concerning the procedure of attaching any goods or the property for Auction to recover a debt, the auction of attached enforced by the OCS Meru Police Station was against order 22 of Cap 21 Civil Procedure Rules.

My Lord my property was Auctioned by a manner which was an abuse of Law. It was a criminal offence committed by the respondent through perjury by swearing false statutory declaration fabricated to steal my properties.

I submit that the actions taken by the respondent were against rent distress Act, and were carried out against the Law. No Rent demand notice of default in rent was served to me my Lord. I aver that the goods attached by the defendant were not subject to distress. I submit that I the plaintiff had no rent arrears. I had paid all my monthly rent to one Cecilia Kambura Mukindia and issued with receipt by the defendant and these receipts are in the plaintiffs list of document.

My Lord the validity of my claim that, it was against the Law to breaking in my rented premises has basis that no warrant of attachement of my property was issued by any court of Law. The police wouldn't have broken into the business premises without a warrant of attachement issued by the court. Rent distress is given a specified period of time to pay the rent in arrears before the attached property is disposed. I was not given any notice for that matter.

It was against the Law to take advantage of an order to breaking to dispose my property without accounting for disposable and undisposable. My Lord I submit that, by the ruling of the Honourable court dated 3.10.2008 the second defendant quickline Auctioneers. Court ruled that he do return all the attached properties, records of stock and other goods not subject to distress to me the plaintiff, upto date has never returned any of them. In the ruling dated 16.6.208 by SPM the Honourable court gave the ruling that, the defendants/respondents were ordered to restore the plaintiff to the premises on plot No.Ntima/Igokil2014 which he occupied. Upon plaintiff paying all the rent that had accrued from the date of detraining to the day of ruling pending determination of the suit.

That the defendants/respondents do return to me Plaintiff! Applicant all the non-attachable as particularized in SM(b) annexed to the replying affidavit and costs in the cause. My Lord I submit that, defendant/respondent disobeyed the order, and nothing has ever restored to me upto date. 

THE ISSUES FOR DETERMI ATION

(i) Did the Respondent comply with the court order?

(ii) Was it in order for the OCS Meru Police Station to enforce an order of breaking and carry away the property of the appellant?

(iii) Has the Appellant succeeded in proving his case?

(iv) Is the Appellant entitled to the reliefs prayed for?

(v) Was the Appellant entitled to the costs of other application which issued orders in his favour.

My Lord I submit that justice were denied when the defendant/respondent ignored and refused to comply with the court order. Your Lordship, I pray that I have succeeded in proving my case against the defendant and urge the Honourable Appeal Court to hold as such.”

4. The appellant’s claims in the Submissions may be summarized:-

(1) Execution process illegal and irregular.

(2) Debt for which execution was carried was not due as no rent was due to justify the distress for rent, having paid all monthly rent to one Cecilia Kambura Mukindia and receipts issued by Defendant.

(3) No notice to pay before attaching property was disposed in distress for rent.

(4) Order by 16/6/2008 for restoration of Appellant to the suit premises upon payment of accrued rent from date of the ruling and return of non-attachables was not complied with.

5. The reliefs sought by the Appellant are unclear, only asserting that the respondent has failed to comply with the court order. The Memorandum of Appeal seeks a return of attached properties, with a “declaration [that] sale by auction of the Appellant stock properties is unlawful, null and void, for non-warrant attachment and non-law procedure, and costs of the appeal.”

6. The Memorandum of Appeal dated 18/12/2020 does not identify the judgment or ruling of the court appealed from. It is in the following terms:

          “An appeal from CMCC No. 144 of 2008. The appellant being aggrieved by the CMCC appeals wholly to judgments and set out grounds of appeal as follows:-

1. That the Learned Magistrate erred in law and in fact to consider the Appellants was misrepresented by his Advocate to reinstate the case and issue an order for return of Appellant properties.

2. That the Learned Magistrate erred in Law and the facts to find out that the Limitation of Actions Act Section 26 (c) Cap 22 accruing period, period start running from date of discovery of the cause of action when dismissed Appellant application for reinstatement of dismissed Appellant’s case for non-attendance on 14/1/2020.

3. That the Learned Magistrate erred in law and the fact to consider there is an earlier order the Hon. Court issued for the return of the Appellant attachable properties on. [sic]

4. The Learned Magistrate erred to consider attachment of Appellant stock properties from a commercial premise by breaking into the house without warrant in the absence of Appellant was illegal and Criminal offences committed by Meru Police Station when dismissed to Applicant application.

5. That the Learned Magistrate erred in law and facts to consider sale by auction of Appellant stock properties was illegal null and void for lack of warrant of attachment. And non-legal procedure.

6. That the dismissed application for reinstatement of dismissed hearings of 14/01/2020 is against the law.

7. Reasons wherefore:- The Appellant prays for the appeal be allowed  for the following:-

a) The Appellant attached properties be returned.

b) Declaration sale by auction of the Appellant stock properties is unlawful, null and wild for non-warrant of attachment and non-law procedure.

c) Costs of appeal.

 Dated at Meru this 18^th day of December 2020.

Gerald Mugiira

Appellant.”

The Pleadings before the Trial Court

7. The litigation in this matter commenced with the filing of a suit in the trial Court by the Appellant on 29/5/2008 as Meru CMCCC No. 144 of 2008 where he sought by the tenancy suit to challenge a distress for rent and seek return of goods attached by the 1^st defendant as the executor of deceased landlord and his agent/auctioneer the 2^nd Defendant. At Paragraphs 4 –9 of plaint dated 23/4/2008 the Appellant sets out his cause of action as follows:-

  “4. The plaintiff has been a tenant of M’Mukindia M’Ikuri deceased on plot T. 634 and NTIMA/IGOKI/2104 in which he ran a Bar business and used as a residential premise.

 “5. The plaintiff paid all the rents to date but the defendant and the other administrator of the deceased estate did not supply, him with a rent book but issued him with an ordinary receipt which he kept in a file.

    “6. On or about 5^th April the Defendant in pretence of distrain for rents and without notice unlawfully and wrongfully  raided the Plaintiff’s rented premises and carried away all the Plaintiff’s properties, records, stock in trade and goods which are not subject to distress for rent.

  Particulars of properties taken away

  ………

 7.The said defendants did not follow the procedure provided for under the Auctioneers Act and acted unlawfully and wrongfully and criminally.

8.The defendants further unlawfully and wrongfully took possession of the plaintiff’s rental premises pretending that they were distraining for rent when they had other ulterior motives.

9. Due to the matters pleaded above the plaintiff has suffered loss and damage and continues to suffer loss and damages.”

8. Consequently, the Plaintiff prayed for relief against the defendants jointly and severally for:-

“(a) Return of the Plaintiff’s property and cash or value of the said property.

(b) Restoration of the rented premises to the Plaintiff.

(c) Damages for wrongful attachment and distress for rent.

(d) Damages based on lost business and profits.

(e) Costs of the suit.

(f) Interest at Court rate.

(g) Any further or better relief this Honourable Court may deem fit to grant.”

Dated at Meru this 23^rd day of April 2008.

Maitai Rimita & Co.

Advocate for the Plaintiff.”

9. The Defendants entered their Defence on 30/5/2008 through M/S Charles Kariuki & Co. Advocates as follows:-

“4. Paragraph 4 and 5 are denied and Plaintiff put to strict proof thereof.

5. The defendants deny all the particulars of Paragraph 6 and put the Plaintiff to strict proof. The Defendant avers that the full particulars of items/goods attached are contained in the inventory filed in court in Meru CMCC Misc No.5 of 2008.

6. By way of defence, the Defendants aver that if any distress was done, which is denied, then the same was done in strict adherence to the provisions of Distress for Rent Act and after court had issued orders to break open the premises after the Plaintiff resulted into keeping house to evade distress after he was served with the notice and proclamation after the Plaintiff had refused to pay rent arrears of Kshs. 77,900.

7. The Defendants denies paragraph 7, 8,9, and 10 and put the Plaintiff into strict proof.

8. Further that the Plaintiff willingly abandoned the premises after distress and he was never evicted from the same but did so at his own volition.

9. The prayers sought are not available to the Plaintiff as nothing unlawful was done and that there is therefore no cause of action against the Defendants as all necessary orders were issued in Meru CMCC Misc. No. 5 of 2008 and report filed to Court thereafter. 

Wherefore the Defendant pray for the dismissal of Plaintiff suit in costs.”

10. By a Notice of Motion dated 16/6/2008, the Plaintiff sought prayers as follows:-

“1. That the Defendants and in particular, the 2^nd Defendant do open the premises on plot No. Ntima/Igoki/2104 hitherto occupied by the Plaintiff pending determination of the suit.

2. That the Defendants and in particular the 2^nd Defendant do return all the attached properties, records, stock in trade and other goods not subject to distress to the Plaintiff.”

11. The Notice of Motion was supported by a Supporting Affidavit of the Plaintiff sworn on 15/6/2008 principally as follows:

“2. I am a tenant of one M’Mukindia M’Ikuri (deceased) on plot No. T.634 Ntima/Igoki/2104 where I have been running a bar.

3. That on or about 5^th April 2008 the 2^nd Defendant on the 1^st Defendant’s instructions wrongfully and unlawfully came to my business premises.

4. That the 2^nd Defendant closed the premises, evicted me and carried away all my properties, records, and stock in trade together with many other goods not subject to distress for rent.

5. That the exercise carried out by the 2^nd Defendant in collusion with the 1^st Defendant was illegal and wrongful.

6. That I had not been served with any statutory notice to distrain.

7. That I was not in any rent areas.

8. That I had paid all my rents to one Cecilia Nkambura Mukindia who issued me with receipts.

9. That the said rent receipts were in a file which was collected by the 2^nd Defendant when he raided my business premises.

10. That if my property is not returned including those not subject to distress I shall suffer irreparable loss as my business will collapse never to recover.

11. That the 2^nd Defendant has no jurisdiction to evict me and close the premises.”

12. On the same date 16/6/2008, the Plaintiff filed a Replying to Defence, principally joining issue with the Defendants upon their joint defence.

13. The 1^st Defendant on behalf of herself and the 2^nd Defendant with latter’s authority made a Replying Affidavit sworn on 8/7/2008 out-lining the facts relied on in Defence as follows:-

“2. I have read application dated 16.6.08 and is in reply thereto I swear this Affidavit in opposition.

3. That the Applicant is a vexatious litigant and is only out to mislead this court with wild accusations including the present one.

4. That the Applicant was duly served with Notice, Affidavit and Proclamation Annexed “SM 1,2, and 3.”

5. That as at 10.01.08, the Applicant was in rent arrears of Ksh 77,900/= as per the Affidavit above and has never paid to date.

6. That the Applicant was properly proclaimed but thereafter resorted to keeping house and locking the premises during the date [sic] in a bid to defeat the distress hence compelling me to seek breaking order vide Meru CM’S Misc. No 5/2008.

7. That attachment was done legally in presence of Police from Meru as per orders of court. Annexed order “SM 4’”

8. That after attachment, the Applicant, who was present, was advised to take all non-attachables but he declined. Attached list of non-attachable “SM 5 (a) & (b).

9. That upon refusal, all the attached goods were stored in 2^nd Defendant’s store and the Applicant is free to collect the non attachables any time. The attachables shall be retained to be sold to recover the rent arrears.

10. That the Applicant claims that he had paid all rent but he has not attached any receipts and the allegation that the file was taken by 2^nd Defendant is false and farfetched as I was present during attachment and whereof the alleged file was never seen.

11. That I am not aware rent was being paid to Cecilia Nkambura who is a 3^rd party and who was not his landlady at all.

12. That the Applicant left the demised property at the time of attachment and there was no way I could have left the premises open as it would have been vandlised by thieves and other parking boys present at Gakoromone Market.

13. That the Applicant did not complain to the OCS Meru where he had accompanied the 2^nd Respondent after attachment.

14.That the Applicant should specify what items should be returned to him and 2nd Respondent has no objection to allowing him to take the non-attachables.

15. That the Applicant having voluntarily left the premises cannot now turn around and seek to be restored back when his hands are not clean.”

14. The Court notes that by the separate proceedings in CMCC Misc. Application No.5of 2008 attached to the Defendants’ Replying Affidavit above, the Court (W.Korir PM, (as he then was) by an order dated 25/3/2008 granted an application dated 18/2/2008 and ordered as follows:-

  “It is hereby ordered:-

1. That breakings order be and is hereby granted to the 1^st Applicant [the Respondent in this appeal] for the purposes of breaking and accessing the proclaimed property belonging to the tenant one Gerald Mugira lying at the Landlord’s premises known as Plot No. T.634 Gakoromone MERU Town and Plot No. Ntima/Igoki/2104.

2. THAT the O.C.S Meru Police Station be and is hereby ordered to provide security during distraining of the tenants goods.

3. That the inventory thereof be taken by both Quickline Auctioneers and O.C.S Meru Police Station and all to file their respective report in court within 7 days after such seizure.”

15. The record of the proceeding of the trial Court show that upon hearing the application dated 16/6/2008, the Court (S. M. Kibunja, SPM as he then was) on 3/10/2008 allowed the application in terms as follows:

“RULING

Having read Mr. Oganyi and Mr. Muchangi advocates for and against the application under certificate of urgency dated 16/6/08 for orders that:-

(i) That the defendant and in particular the 2^nd defendant do open the premises on plot No. Ntima/lgoki/2104 hitherto occupied by the plaintiff

(ii) That the defendants and in particular the 2^nd defendant do return all the attached properties, records, stock in trade and other goods subject to distress to the plaintiff,

I find as follows:-

First that the applicant has not particularized the items that were attached that he believes are non-attachable and that the court can only rely on the particulars of such items as provided by the respondent vide their annexture SM5 (b) as the respondents have indicated they are willing to release the listed items to the owner/applicant then prayer 2 is granted limited to the items particulariozed in annextuer SM. 5(b).

As there is a dispute as to allegations plaintiff was in arrears of rent when the distress as carried out the court cannot make an order on the return of other items without the matter being first heard and a decision made on merit. The distressing for rent arrears and the breaking in order in favour of the respondent did not amount to an order to evict the applicant/tenant from the premises. As the applicant has expressed his desire to continue occupying the premises then the respondents should give him access to the premises upon the applicant ensuring he has paid all the rent that has accrued after the distress.

I therefore allow the application by motion under certificate of urgency dated 16/6/2008 in the following terms:-

“1. That the Defendant/Respondents are ordered to restore the plaintiff to the premises on plot No. Ntima/Igoki/2104 which he occupied at the time of distraining for rent arrears upon the Plaintiff paying all rent that has accrued from the date of distraining to today pending determination of this suit.

2. That the Defendants/Respondents do return to the Plaintiff all the non-attachables as particularized in SM.5 (b) annexed to the Replying Affidavit.

3. Costs in the cause.”

16. Despite several hearing dates between, 24/10/2008 and 10/3/2011, the record shows that the hearing of the suit did not proceed as it was adjourned for various reasons. All the while, the Plaintiff was represented by counsel, and on 10/3/2011, the record shows appearance before J. Ndubi, SRM as follows:-

“Before J. Ndubi SRM

Court Kiriinya

Plaintiff present

Defendant Absent

Mr. J.G Gitonga for Plaintiff

No appearance for defendant

Mr. J. Gitonga

Mr. Rimita is before High Court. He will be ready to proceed.

Court: Date was taken exparte. No evidence of service upon the Defendant. This is a fresh matter. 

Order

Parties to comply with Order 11. Parties to thereafter fix a hearing date at the Registry. Costs in the cause.”

17. The matter next came up before C.K. Obara –Deputy Registrar on 17/7/2017 when the suit was dismissed for want of prosecution as follows:-

“17.7.2017

Before Hon. C.K Obara- Deputy Registrar

Court Clerk Kamau

Plaintiff Absent

Defendant Absent

Court: For the last 6 years matter has not been prosecuted. Parties are not present in court. The case is dismissed for want of prosecution. The record shows parties were served.

C.K.Obara

Deputy Registrar

18. The next intervention in the matter came almost 2 years later on 27/6/2019 when by an application of the same date, the Plaintiff filed for return of the attached goods. The application was filed by the plaintiff in person and subsequently with the assistance of Counsel, Ms. Nelima, on 6/8/2019, the application was withdrawn as shown in the Record:

“6.8.2019

Before Hon. E. Tsimonjero –RM

Court Assistant Susan

Ms. Nelima for Plaintiff/Applicant

Ms. Gikunda holding brief for Kiogora for the Respondent.

Ms Nelima:

It is for the application dated 27^th June 2019 filed by the Appilcant in person. It was filed after the suit was dismissed. I have talked to my client to have the application withdrawn and file a proper one.

Ms. Gikunda. We can have thrown away costs.

Court: The application dated 27/6/2019 is hereby withdrawn with no order as to costs.

E.Tsimonjero

Resident Magistrate.”

19. It would appear that, not being persuaded by his advocates, the Plaintiff/Applicant then filed an application dated 27/8/2019 which was canvased by written submissions filed by counsel for the parties and the court ruled on the application on 13/11/2019 dismissing the application as shown in the Ruling of the court, the full text of which is set out below:-

“RULING

Before this court is the plaintiff's application dated 27/8/2019 which essentially

seeks the reinstatement of the application dated 27/6/2019.

This court takes exceptional note that the application dated 27/6/2019 had been filed b the plaintiff in person, upon being instructed Ms. Nelima attended court and sought to have the application withdrawn to enable her file a proper application. Before this was done, the plaintiff/applicant file a notice withdrawing instructions from Ms. Nelima and thus to act in person.  It is thereafter that he filed the correct application which is a duplication of the withdrawn application.

The gist of the application is for the order that the respondent be compelled to return his non -attachable properties which were attached in the distress for rent carried out sometime in 2008, on 24/10/08, the then trial court gave an order in the interim that the respondent were to restore the plaintiff to the premises and to return to the plaintiff all the non-attachable goods as were particularized in one of the annextures to the application.

Upon the interim orders being granted, this matter never took off to hearing on merit. The matter was mentioned on several occasions up to sometime in March 2011 specifically 10/3/2011 when the matter was adjourned for want of service. Thereafter, the matter remained dormant until the 27/7/17 when it was placed before my predecessor, Hon. C. Obara for notice to show cause why the suit should not be dismissed for want of prosecution. Upon being satisfied that the parties were served and they were absent and taking not that this matter had been dormant for 6 years, the court proceeded to dismiss the suit for want of prosecution.

The record does not have any application for reinstatement of the suit and an order to that effect. As we speak this suit does not exist as it was dismissed on 25/7/2017, over two years ago. As at the time of filing the application dated 27/6/20 9 there was no suit in existence. This court does not need to belabor itself any further.

The application dated 27/8/19 and the application dated 27/6/19 are both dead on arrival.  The suit having been dismissed, these applications have no legs on which to stand and they are dismissed. I will give no order as to costs.

File closed.

Dated at Meru this 13^th day of November 2019.

E. TSIMONJERO

RESIDENT MAGISTRATE”

20. The plaintiff appeared to consider the advice by his the counsel, Ms. Nelima, to be “misrepresentation” as he filed to reinstate the very application of 27/6/2019 which had previously been withdrawn, as shown in the orders sought in the application on 27/8/2019 as follows:-

“1. This Hon Court be pleased to exercise its discretionary powers Judiciary (sic) and grant leave to revive the above subject matter to and justice,avoid injustice and  disaster in the matter of law and further the Applicant be granted leave to file application for orders to return non-attachabes properties attached by 2^nd Respondent.

2. This High Court further be pleased to grant an order to reinstate the Applicant application dated 27^th of June, 2019 for misrepresentation by Advocate currently withdrawn from the record.

3. This Hon. Court do grant and issue an order compelling the 2^nd Respondent to return all non-attachable Applicant properties pursuant to this Hon. Court ruling of 24^th day of October, 2008 attached by 2^nd Respondent in contravention of Rent and Tribunal dispute Act. [Sic]

4. Unless the 2^nd Respondent returns the non-attachable properties the 1^st Respondent be compelled to pay all non- attachable properties for non-warrant of attachment in the matter of law.”

21. In the Supporting Affidavit, the Plaintiff blames his Advocate for his loses since the grant of the order for return of his no-attachable property as follows:-

“2. That without any Court warrant of attachment from any court of law the police officers broke into the shop which I had rented from Banana Mukindia and the 2^nd Respondent took away all my stock in the shop together with money amounting to Ksh.50,000/= in cash by false pretenses of failing to pay rent arrears having been paying rent to the landlord Banana Mukindia in his life, but is deceased (Annexed  photocopies of payment receipts).

3. I accompanied the police officers of Meru Police Station upto Meru Police and demanded a court warrant of attachment from the police who verbally told me they have Court Order for attachment but without substantiating the attachment warrant from any court of law to me.

4. That despite having engaged Advocate David Maitai Rimita & Co. Advocate I was never informed about the progress of the subject matter in the court which renders the action to misrepresentation by my Advocate.

5.That further I have discovered the subject matter was dismissed for non-attendance by my Advocate after making inquiry in the court registry due to misrepresentation and professional negligence.

6. That I have been rendered poor by the 2^nd and 1^st Respondents after all selling stock was attached by the 2^nd Respondent.

7.That I was not given any notice or time to pay rent arrears if there were any owing to the 1^st Respondent.”

22. Upon dismissal of the application of 27/8/2019 by the  ruling of the court of 23/11/2019, the Plaintiff filed an application dated 4^th December 2019 seeking the following orders:-

“1. This Hon. Court be pleased  and grant the Applicant leave to file application for reviving and reinstatement of the closed file for  want of prosecution in the interest of justice.

2. This Hon. Court further be pleased to exercise its discretionary powers Judiciary (sic) to revive and reinstate the application of 27/8/2019 to aid justice, avoid injustice and disaster.

3. The  Hon. Court do further be pleased on its  own motion to set aside its ruling of 13/11/2019 quo  moto [sic] for perversion of the cause of justice and grown misjustice.”

23. In his Supporting Affidavit to this application, the Appellant/plaintiff now blames the court’s handling of his two applications filed after the striking out of the suit as follows:-

“That there is an error apparent on the face of court record for recanting from my application, to revive the closed file in the above subject matter.

2. That the dismissal of my application to revive an order for returning my attached properties which were not attachable is an impair of justice.

4.That there is a failure of justice for the court recanting from my application to revive the above subject matter and instead making reference to the previous recordings.

5. That I had filed an application to reinstate the earlier application after the same was struck out.

6. That after my application to revive the closed file was struck out by misrepresentation and I filed another application to reinstate the application to revive the closed file the same.”

24. It is upon this application dated 4/12/2019 coming up on 14/1/2020 that the court disposed of by the orders shown in the court record as follows:

“14.1.2020

Before: E. Tsimonjero, RM

Court Assistant: Susan

Plaintiff present

Mr. Ngugi for the 1^st Defendant/Respondent

No appearance for the 2^nd defendant respondent

Mr. Ngugi: The matter is for the hearing of application dated 4/12/2019. However, as per the ruling of the court, the court is functus officio. No need to waste the court’s time. We have filed preliminary objection to the application.

Court: The court delivered its ruling in this matter on 13/11/2019 and clearly stated that the suit having been dismissed and there being no application or order to reinstate the suit then the subsequent application had no legs on which to stand. That remains the position. The court has downed its tools and cannot entertain any further applications in this matter.”

Hon. E. Tsimonjeru

Resident Magistrate

14/1/2020.”

25. The Appellant then filed an application by Chamber Summons dated 31/1/2020 whose several reliefs though unclear as found by the Court were pointed to an ultimate prayer for “an order to return the applicant properties be granted to dispense justice.” Upon considering the application, the Court (Mabeya, J) ruled as follows:-

“7. I have carefully considered the affidavits on record and the submissions of the parties. From the outset, I should state that I did not understand the orders the applicant was seeking. It was not clear whether this was an Originating Summons, whereby the Court is required to consider set up questions, or it was an appeal against a particular decision of the lower court.

8. The application as brought does not lie. Lacking clarity, the application is incurably defective and is for striking out.

9. A close scrutiny of the affidavits will show that what the applicant was seeking was to appeal against an unspecified decision. It is not clear whether it was the judgment of 3/ 10/ 2008 or the dismissal order of 25/7/2019 Or the order dismissing his application for reinstatement dated 6/8/2019.  Whichever the decision he is challenging, none was properly pleaded or produced in evidence.

10. This Court is alive to the provisions of Article 159 (2) (d) of the Constitution which directs the courts not to determine matters on technicality. However, the defect before me is not one of form or technicality but of a substantive nature for the following reasons: -

a) It is not clear what orders the applicant is seeking from the Chamber Summons under consideration;

b) The statements he sets out in the Chamber Summons cannot be said to be prayers capable of being granted;

c) The application is so convoluted that no meaningful deduction can be made of it.

11. In view of the foregoing, I strike out the application with costs to the respondent.

12. However, noting that the applicant is acting in person, I hereby grant him leave to appeal against whichever order he desires from Meru CMCC No. 144 of 2008. Any such appeal should be filed within 14 days of this ruling.”

26. This appeal was filed as a consequence of the leave granted by the court on 10/12/2020 as set out above

Issue for Determination

27. The broad issue for determination in this appeal, therefore, is whether the Declaration of invalidity of the attachment of the appellant’s property and the order for the return of the properties sought in the Memorandum of Appeal may be granted on the evidence before the trial court and the applicable law.  From the pleadings, Affidavits and Memorandum of Appeal and submissions filed in the appeal and having perused the proceedings of the trial Court, the following issues arise:-

a) Whether the question of irregularity in attachment of the Appellant’s property is properly before the Appellate Court.

b) Whether this court may properly make an order for return of appellant’s attached property; and

c) What is the appropriate remedy, if any, in the circumstances of this case.

DETERMINATION

Whether legality of attachment properly before the Court.

28. The trial Court did not determine the question of illegality of the distress levied on the appellant and the procedure for attachment of his property. What the trial Court heard and determined was an application for the return of non-attachable property of the Appellant. Section 3 of the Distress for Rent Act provides for the right to distress  as follows:-

“3(1) Subject to the provisions of this Act, any person having any rent or rent service in arrear and due upon a grant, lease, Demise or contract shall have the same remedy by distress for the recovery of that rent or rent service as is given by the common law of England in a similar case.”

(2) No distress shall be levied between sunset and sunrise or on any Sunday.”

29. The Appellant’s claim that the distress upon the property was levied by the 1^st Defendant through the 2^nd Defendant when the right to distress had not arisen as he was not in arrears having paid all due rent to a named person, which was denied by the 1^st Defendant was not determined at the trial court by the time the suit was dismissed on 17/1/2017 for want of prosecution. No appeal can arise for an issue which has not been determined by the trial Court and therefore, this issue of legality of the distress is not properly before the court.

30. Pursuant to section 16 (2) of the Distress for Rent Act, the court has power to order return of good and chattels which have been attached but are exempt for distress, what the appellant calls non-attachables,” as follows: -

“16(2) A subordinate Court, on complaint that goods or chattels exempt under this section from distress for rent have been taken under that distress, may by summary order direct that the goods and chattels so taken, if not sold, be restored; or if they have been sold that such sum as the Court may determine to be the value thereof shall be paid to the complainant by the person who levied the distress or directed it to be levied.”

31. By its ruling of 3/10/2008, the trial Court, (S.M. Kibunja, SPM, as he then was) already gave the order for the return of non-attachable properties.  All that remained was for the Appellant who was then represented by Counsel to follow up on the implementation of the order for reinstatement into the premises pending hearing of the suit and for the return of the non-attachable properties. If the Defendants/Respondents failed to comply with the order for return of non-attachables or reinstate him into the premises, he should have moved for the execution of the order. There is no evidence that the Appellant even attempted execution of the order, and to what outcome.

32. All there is shown in the proceedings is that after several false starts in the hearing of the suit when counsel for the both parties sought adjournment or were unavailable, the suit finally came before the trial Court with notice from court to the parties when on 17/7/2017 the case was dismissed for want of Prosecution after a hiatus of 6 years since the previous appearance before the Court on 10/3/2011 when the matter had been stood over to allow parties to comply with the pre-trial  directions under order 11,as follows:-

“10.3.2011

Before J. Ndubi, SRM

Court Kiriinya

Plaintiff present

Defendant Absent

Mr. J.G. Gitonga for Plaintiff

No appearance for Defendant

Mr. J.G. Gitonga: Mr. Rimita is before High Court. He will be ready to proceed.

Court: Date taken exparte. No evidence of service upon the Defendant. This is a fresh matter.

Order: Parties to comply with Order 11. Parties to thereafter fix a hearing date at the Registry. Costs in the cause.

J. Ndubi

Senior Resident Magistrate.”

33. The trial Court having already granted the order for return of non-attachables properties of the Appellant by its order of 3/10/2008, the prayer for the same order before this court on appeal is incompetent and an abuse of  the process of the Court. In similar circumstances, the Court of Appeal dismissed the 2^nd Application filed before it when the High Court had already granted similar application in a matter of stay of execution in Hunker decision, Hunker Trading Company Limited v Elf Oil Kenya Limited [2010] eKLR, C.AC.A NO. 6/2010 where the Court of Appeal [Githinji, Visram and Nyamu, JJA.] said that:-

“In the circumstances, we find that the exercise by us of any original jurisdiction would be inappropriate where, as in this case, the lower court has exercised a parallel jurisdiction. It must be demonstrated to this Court that the jurisdiction of the lower court has not been properly exercised, otherwise we would be encouraging duplication of effort and poor management of the available resources.

The Applicant is seeking the same order it declined to obey. We think that we have the jurisdiction to stop it in its tracks in order to attain or further the “02” [overriding objective] principle. We would act unjustly if we were to allow it another chance in this Court to defeat the cause of Justice by failing to obey an important order of the Superior Court.”

34. In this case, the Appellant is seeking the same orders he obtained on 3/10/2008 before the trial Court and which he failed to pursue to implementation or execution, and it would be unjust to repeat the order against the Defendants/Respondents for compliance of an order already granted almost 14 years ago. The Appellant must be taken to have slept on this rights within the meaning of the maximum of equity that equity does not assist the indolent.

Appellant interference with discretion

35. The Appeal Court may only interfere with the exercise of discretion by a trial court in the circumstances set out in Mbogo v.Shah [1967] EA 93 as follows:-

“A Court of Appeal should not interfere with the exercise of the discretion of a Judge unless it is satisfied that he misdirected himself in some matter and as a result arrived at a wrong decision, or unless it is manifest from the case as a whole that the Judge was clearly wrong in the exercise of his discretion and that as a result there has been misjustice.”

36. In its ruling dated 13/11/2019, the trial Court found that the applications of 27/6/2019 which had been withdrawn on advice of counsel and at 27/8/2019 seeking to reinstate it, were both incompetent having been filed on an non-existent suit.  To be sure, the Appellant had by the very application of 27/8/2019 sought an order for revival of the suit in its prayer for revival of the suit in its prayer No. 1 as follows:-

“1. This Honourable Court be pleased to exercise its discretionary powers judicially and grant leave to revive the above subject matter to and justice, avoid injustice and disaster in the matter of law and further the Applicant be granted leave to file application for orders to return non-attachables properties attached the 2^nd respondent.”

Although not elegantly put, the application for revival of the dismissal suit is the just prayer of the Notice of Motion of 27/8/2019.  The trial court ought to have dealt with the application for revival of the suit in its ruling of 13/11/2019. It did not. It was a misdirection that there had been no application for revival of the suit, but was it fatal? Was the decision to dismiss the applications wrong and had there been a misjustice in the terminology of Mbogo v Shah, supra.

37. It is the respectful view of this court that despite the misdirection by the trial Court, the final decision in refusing the applications was the right decision in the circumstances of this case and there had not been any misjustice. The Applicant had not explained the want of prosecution of the suit for 6 years between 10/3/2011 when it was adjourned to allow compliance with Order 11 pre-trial directions and 27/7/2017 when it was dismissed for want of prosecution upon a Notice to show cause by the court. Order 17 Rule 2 of the Civil Procedure Rules provides that:-

“2(1) In any suit in which no application has been made or step taken by either party for ONE year, the Court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit.”

38. The Appellant only ascribed his problems to his Advocate who “never informed me about the progress of the subject matter in the Court which renders the action to misrepresentation by my Advocate” and that he had “discovered the subject matter was dismissed for non-attendance by my Advocate after making inquiry in the Court registry done to misrepresentation and professional negligence.”  Suffice it to state that the appellant did not explain why no action or step had been taken by him for the 6 years preceding the dismissal of the suit, and in this Affidavit he touches on where this relief lies in suit for professional negligence against his counsel for what he calls “misrepresentation by my Advocate.”

39. The Notice of Motion dated 4/12/2019 was in similar terms as the application dated 27/8/2019 upon which the trial court had ruled on 13/11/2019, save for the prayer No. 3 for setting aside of its own said ruling of 13/11/2019. The trial court rightly ruled that it had become functus officio upon delivery of the ruling of 13/11/2019 declining the same orders sought in the application of 4/12/2019.  There were clearly no grounds for review of the ruling of 13/11/2019.  It appears that the Appellant was complaining against the trial Court that “my submissions was not considered in the interest of justice but instead the Ruling is done by previous records of 2011 for helping cover-up of fraud by perversion of the case of justice and grown misjustice” and that “there is a failure of justice for the court recanting from my application to revive the subject matter and instead making reference to previous recordings.”  A challenge on the finding of a court must be by appeal not review. See NBK v. Njau [1997] eKLR where the Court of Appeal held:

“By its memorandum of appeal the Bank has appealed on the grounds that the learned Judge granted orders which were not sought in the pleadings and which he had no jurisdiction to grant and made orders against a third party who was not party to the suit before him and that the learned Judge reached wrong conclusions of law invoking his inherent powers in the face of a clear statutory provision for the taxation of costs.  All these grounds had been urged by Mr. Njuguna in the superior court while opposing the respondent’s application for temporary injunction.  They had been considered and rejected by the learned Judge who exercised his discretion in favour of the respondent.  Once again these very grounds were urged before the learned Judge on the notice of motion and were rejected.

       A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court.  The error or omission must be self evident and should not require an elaborate argument to be established.  It will not be a sufficient ground for review that another Judge could have taken a different view of the matter.  Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law.  Misconstruing a statute or other provision of law cannot be a ground for review.”

40. In the present appeal, as observed by Mabeya, J. on application for leave to appeal out of time and the trial Court in the application for reinstatement of the suit and applications for return of attached goods, it is with great difficulty that the courts have attempted to understand the case for the Appellant as he has presented it himself in his applications and submissions. He purports to make a Lawyer’s submission complete with legal terminology which he clearly ill understands. He will rue his failure to seek legal advice in this matter as to how to protect his interest in the matter.  

41. This court has set out the pleadings, affidavits and proceedings in great length to illuminate the litigation path taken by the Appellant it this matter. It has been a path fraught with indolence on the part of the Appellant by, firstly, failing to execute the Court Order of 3/10/2008 for the return of his non-attachable property; secondly, failing to take any action or steps, for the hearing of the main suit including the compliance with the Pre-trial directions Order 11 of the Civil Procedure Rules as ordered by the trial court on 10/3/2011; and, finally, failing explain the long delays when making the applications for revival of the suit and reinstatement of the applications therein for repeat orders of return of non-attachable properties, which was already granted by the trial court over 10 years previously.

42. The appellant appears to think that his case depends on the law of limitations and its exemptions under section 26 of the Limitation of Actions Act which at sub-paragraph (c) provides that time starts to run from the time of discovery of mistake upon which the cause of action is based as follows:

“26. Extension of limitation period in case of fraud or mistake

Where, in the case of an action for which a period of limitation is prescribed, either—

(a) the action is based upon the fraud of the defendant or his agent, or of any person through whom he claims or his agent; or

(b) the right of action is concealed by the fraud of any such person as aforesaid; or

(c) the action is for relief from the consequences of a mistake, the period of limitation does not begin to run until the plaintiff has discovered the fraud or the mistake or could with reasonable diligence have discovered it:

Provided that this section does not enable an action to be brought to recover, or enforce any mortgage upon, or set aside any transaction affecting, any property which—

(i) in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know or have reason to believe that any fraud had been committed; or

(ii) (ii) in the case of mistake, has been purchased for valuable consideration, after the transaction in which the mistake was made, by a person who did not know or have reason to believe that the mistake had been made.”

43. However, it is clear to this court that the dismissal of the suit herein depended on the provisions of Order 17 Rule 2 of the Civil Procedure Rules on want of prosecution of a suit where no action or step is taken for a period of over one year.  Reinstatement of a suit which has been dismissed for want of prosecution does not depend on limitation, although enforcement of judgment or order in such a suit may in the meantime become barred by limitation, but on the length of the delay and the explanation for such delay.  The cause herein was not dismissed, and its reinstatement or application for return of attached goods were not refused, for being barred by limitation.  There was no action for relief from consequences of a mistake, which has been time-barred: it was simply a suitor’s inaction in a pending suit for an inordinately long time which has not been explained.   Section 26 of the Limitation of Actions Act has no application to this matter.

Conclusion

44. Vigilantibus non dormientibus, jura subveniut.   

The laws assist those who are vigilant, not those who sleep over their rights. (See Broom’s Legal Maxims, 10 ed. by R. H. Kersley (1939) at p.599). The Appellant’s right to have the non-attachable property returned was recognized by the trial court and an order for their return made on 3/10/2008.  Equity aids the vigilant not the indolent. Delay defeats equity.  For his indolence the Court Order for return of the Appellant’s non-attachables granted on 3/10/2008 was never implemented or executed in default. For his indolence the Appellants’ suit was dismissed for want of prosecution on 27/7/2017, six years after it was adjourned for compliance with Pre-trial directions under Order 11 of the Civil Procedure Rules. In his indolence, the appellant’s application for revival of the suit was not filed until almost 2 years later on 27/6/2019. There was no explanation for the delays save for vague reference to his Advocates’ professional negligence for “misrepresentation”

45. The application for return of non-attachable goods was already granted on 3/10/2008. The Appellant should have executed the order if the Respondents failed to comply. He could also have sought the review of the order if the items directed to be returned were not in his view the non-attachables taken by the Respondents. He may also have appealed if he thought the trial Court was wrong in its direction and interpretation as to what goods constituted non-attachable goods under the law of distress. He did none of the above, since 3/10/2008. The issue of return of non-attachable goods must be taken to be res judicata having been finally determined by an order of competent Court. See Mburu Kinyua v. Gachini Tuti [1976-80] KLR 790.

46. In Mburu Kinyua v. Gachini Tuti, supra, Madan, J.A. in his dissent ventured that an Applicant could bring repeat applications before the Court over the same subject but subject to res judicata, as follows:-

“I am not aware of any bar generally to preventing more than one application until the conscience of the Court comes to rest that justice has been done. I would not go so far as to say that the Court must act whether or not there is a right of appeal, review, or application. It would depend on the circumstances in each case. Moreover, the liberty to present more than one application is always subject to the Courts’ power to prevent abuse of its process, including mulcting the offending party in costs. It is also, of course, subject to the rule of res judicata....”

47. The conscience of the Court in this matter is clear that the Appellant had opportunity to have his non-attachable goods returned by Court Order of 3/10/2008 which he failed to execute; he had opportunity to test the validity of the distress when he alleged he had no arrears of rent through the hearing of the main suit the directions for hearing of which were given on 10/3/2011, but failed  to take steps towards such hearing for 6 years leading to the dismissal for want of prosecution of the entire suit; and he had opportunity to obtain an order for revival of the suit by explaining the delay in taking  steps to prosecute it, which he failed to do in the applications of 27/6/2019 and 27/8/2019. He squandered all his opportunities. He blamed his legal advisor for professional negligence. He must be left to his devices. He may sue for professional negligence, as he may consider fitting.

48. Without making a determination on the merits of the dispute herein, the Court makes a distinction between distress for rent under the Distress for Rent Act and execution proceedings for recovery of a civil debt by action before the court under Order 22 of the Civil Procedure Rules.  A distress for rent does not require court proceedings for the power to attach property to crystallize, only arrears of rent due is necessary, see s.3 of the Act; and there is procedure for a breaking order of court where a respondent seeks to avoid attachment by locking up premises where his attachable property are stored, or moves such property to defeat attachment, see ss. 9 and 11 of the Act.

49. The court is mindful of the requirement of substantial justice under Article 159 of the Constitution and the principle that procedure is the handmaid of justice and gate-way to justice. However, as demonstrated above, the Appellant in this case appears to have closed the door on himself by his very conduct of the proceedings in the trial court.

ORDERS

50. Accordingly, for the reasons set out above, the Court makes the following Orders:-

a) The Appellant’s appeal herein presented by the Memorandum of Appeal dated 18^th December 2020, is dismissed.

b) The Appellant may, as he deems fitting, or as he be advised by his legal advisors, sue his Advocates for professional negligence.

c) As the Respondents did not appear, there shall be no order as to costs in the appeal.

Orders accordingly.

DATED AND DELIVERED THE 24^TH DAY OF MARCH, 2022.

EDWARD M. MURIITHI

JUDGE

Appearance:

Appellant in person.

N/A for the respondents.