George Odhiambo Umidha v Co-operative Bank of Kenya Limited & Bernard Nalo Makatiani [2018] KEHC 2686 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT SIAYA

MISC. CIVIL APPLICATION NO. 2  OF 2018

GEORGE ODHIAMBO UMIDHA........................................APPLLCANT

VERSUS

CO-OPERATIVE BANK OF KENYA LIMITED.....1ST RESPONDENT

BERNARD NALO MAKATIANI...............................2ND RESPONDENT

RULING

1.  By an application dated 26th June, 2018, the Applicant GEORGE ODHIAMBO UMIDHA seeks from Court leave to file his appeal out of time challenging orders made on 22. 9.2016 by Hon Hazel Wandere and that the annexed Memorandum of Appeal be deemed to be duly filed and served.

2.  The Application is supported by grounds on the face of the Application and the Applicant George Odhiambo Umidha Sworn on 26. 6.2018.

3.  The gist of the Application which is brought under the provision of Section 79 G and 95 of the Civil Procedure Act, 2010, Order 50 Rule 5 of the Civil Procedure Rulesand all enabling laws is that the 2nd Respondent Bernard Nato Makatiani had made an application for provision of Security in execution of instruction for the attachment in Civil Misc. Applications No. 42/2016.

4.  That the Auctioneer proceeded to execute Warrants against the Applicant herein.  The Applicant denies having any relationship with the 1st Respondent Co-operative Bank (K) Limited as he was never a Party to the application by the 1st Respondent.

5.  That he therefore filed Objection to Execution vide application dated 30. 6.2016 in the same Court which had granted provision of security to the 2nd Respondent and the Court did on 13. 7.2016 direct that the animals earlier attached be returned to him after consideration of his application which was undefended.

6.  That however, the Auctioneer later made a belated application dated 18. 7.2016 and had the Court case file placed before a different Magistrate not seized of the matter and without serving the Applicant herein with the papers and that the said Principal Magistrate directed that the said file be taken to the High Court for interpretation of the Orders.

7.  That however, the High Court advised that it was better for an appeal to be filed and that albeit a Memorandum of Appeal was drawn, it was not filed in time as the Applicant herein delayed to furnish his Advocate with instructions to file the same.

8.  He now seeks Leave to lodge the appeal out of time as the delay in filing the same was not deliberate and that the intended appeal has arguable chances of success.  Further that unless the Application is allowed, the Applicant stands to suffer irreparably.

9.  The Applicant deposes that he is willing and ready to abide by the conditions that the Court may deem it just.

10. The Applicant’s application is vehemently opposed by the 1st Respondent who filed a Replying Affidavit sworn by Rose Ongira, its Advocate.

11. It is deponed that the 2nd Respondent had filed a Miscellaneous Civil suit No. Siaya Misc. 42/2016 Coop Bank of Kenya Ltd Vs. Ruth Akinyi Wau & 4 Others and Bernard Analo Makatiani, trading as Benwill Auctioneersseeking for Security as he intended to execute against one Ruth Akinyi Wau who had defaulted in servicing her loans obtained from the 1st Respondent via a Chattels Mortgage and that the said application was allowed.

12. That the said Auctioneers went ahead and attached the animals of Ruth Wau and that is when the Applicant herein filed Objection to attachment in the said file where the Auctioneer had obtained an Order for provision of security in executing the Orders, instead of filing the application in a proper Civil Suit as expected.

13. That despite the above procedural anomaly, the Court went ahead and entertained the application by the Objector and issued Orders directing that 5 bulls and 2 cows attached by the Auctioneer be returned to the Objector and/or their proceeds of sale of the said animals, despite the fact that there was no prayer for refund but for stay of execution and sale of the animals pending hearing and determination of the application and for declaration that the purported execution and attachment levied by the Auctioneers on the Applicant’s properties was null and void, illegal, unlawful, irregular, null and void and that the same be lifted with all consequential orders therefrom.

14. That albeit the Applicant filed an affidavit of service claiming that it had served the 1st Respondent with the application, that was not true as the 1st Respondent only came to know of the application when it was served with an order through its Siaya Branch.

15. That the Lower Court allowed the Applicant/Objectors application granting orders that were never prayed for by the Objector/Applicant herein.

16. That the 1st Respondent filed Notice of Appointment and the file was placed before Hon. C. Okore on 29. 7.2016 for direction on whether the Objector’s application was properly filed in a Civil application file instead of filing of a proper suit given that a 3rd Defendant non-party was enjoined by the Applicant and since the file was only opened for orders on provision of security while executing.

17. That the Court directed parties, to appear on 4. 8.2016 for further directions and for the parties to shed light on what was happening in that file.

18. That on 4. 8.2018 Hon. Okore declined to handle the matter and directed that the file be placed before Hon. H. Wandere who had the conduct of the matter and the 1st Respondent’s Advocates submitted upon which Hon. Wandere reserved the Ruling for 8. 9.2016.

19. That in any event the Applicant/Objector’s Advocates had been served for 4. 8.2016 but that they failed to attend Court.

20. That the ruling was never delivered in the presence of the parties after the Magistrate indicated that the file had been returned to the registry hence she would deliver the ruling on Notice but which Notice was never issued until the 1st Respondent’s Counsel stumbled on the ruling in the Registry after writing to the Court and learnt that the same was delivered on 22. 9.2016 directing the Objector to file a proper Civil suit but which suit has never been filed.

21. That this application is meritless as no leave to appeal was obtained from the Magistrate’s Court hence the application herein is untenable pursuant to order 43 (1)(a) – (aa) hence it should be struck out with Costs to the Respondents.

Submissions

22. The Parties Advocates urged the application by way of Oral submissions made on 1. 10. 2018 with Mr. Oduor submitting on behalf of the Applicant/Objector reiterating the depositions by his Client whereas Mr. Abira opposed the Application on behalf of the Respondent reiterating depositions in the Replying affidavit.

23.  In addition, Mr. Oduor submitted that final Orders had been issued in his clients favour on 13. 7.2016 directing the attached animals to be returned to the Applicant/Objector and that under Order 22 Rule 51 of the CPR contemplates that Objection to execution ought to be made in the same proceedings where execution took place.

24. It was submitted that in this case, the Respondent placed the file before a different Magistrate who went ahead by directing the Objector/Applicant to file a proper suit.

25. It was submitted that the Applicant was not party to those proceedings hence he could not have sought leave to lodge the appeal within the stipulated period under Section 79 G of the CP or Order 50 (5) of the CPR hence he appeared before the P.M. for directions on how to proceed with the matter and was advised to appeal hence this application.

26. Mr. Oduor relied on Article 159 of the Constitution and urged the Court to allow the application as there was no way his client could have known that there was a decision against him.

27. It was submitted that even if there was a procedural lapse, the Court should invoke the overriding Objectives of the Civil Procedure Act and Article 159 of the Constitution and allow the Application as the intended appeal was arguable and that his client was going to suffer irreparably unless the Orders sought are granted as he has been to Court severally and hired different Advocates.

28. In opposing the appeal and adopting the depositions contained in the Replying affidavit, Mr. Abira submitted that the Applicant’s Counsel was served but failed to appear in Court on 4. 8.2016 to protect the Objector’s interests.

29. Further, that the placing of the file before another Magistrate was an administrative issue as Hon. Okore was not  in the station and has not been there for quite some time, todate.

30. That the subject objection proceedings filed by the Applicant did not fall under Order 22 Rule 51 of the Civil Procedure Rules.

31. That if the Objector had an interest in the matter, it should have perused the file to discover what orders may have been made therein.

32. It was submitted that the application herein as a whole was improperly before this Court and offends Order 43 Rule 1 of the CPC as the Applicant has no automatic right to appeal against that Order without Leave of Court from the Court that made the Order.

33. That this Court should not sacrifice procedure at the expense of satisfying an offending Party.

34. It was also submitted that the issues sought to be ventilated on appeal are different from what the Objector sought in his application for Objection to Execution hence the intended appeal has no chances of appeal hence it should be dismissed as the Objector should have sought to file a different suit.

35. In a rejoinder Mr. Oduor submitted that failure to seek leave in the Lower Court to file an appeal is curable by Article 159 of the Constitution as the Applicant relied on Counsel from the subordinate Court and from the High Court and that there are no conflicting issues on appeal as there was an order for return of 5 animals and that, that order has not been renewed hence the orders sought herein should be granted.

DETERMINATION:

36. I have carefully considered the application herein which seeks leave of this Court to appeal against the Order of the P.M’s Court made on 22. 9.2016 out of time and the issue that is for determination is whether the Applicant/Objector is entitled to the Orders sought?

37. There are serious ancillary questions that the Court will however, answer in determining the above main issue.

38. The first question is whether the application for leave to appeal out of time is tenable in view of the allegation by the Respondent’s Counsel that the application offends Order 43 (1) (a) of the CPR as there is no automatic right of appeal and that since the Applicant should have first applied for leave to appeal before the Court whose Orders are sought to be challenged herein.

39. The beginning point is to examine the Lower Court record as extracted and filed herein by both parties’ Advocates.

40. From the annextures filed in support of the affidavits of both Parties, it is clear that the Applicant herein was an Objector to execution process commenced by the 2nd Respondent Auctioneer as Agent of the 1st Respondent by way of attachment of the movable property allegedly belonging to the Applicant herein in the mistaken belief that the said property to wit, animals, belonged to Ruth Akinyi Wau who had allegedly defaulted in the repayment of a loan advanced to her by the 1st Respondent via Chattels Mortgage.

41. The Objector successfully obtained an Order for the release of the animals.  However, on the Respondents learning of what the Court had ordered in favour of the Applicant herein, they approached the Court in protest and the Court did, after considering an application to the effect that the Applicant herein had, instead of filing a fresh suit challenging the process of attachment of the animals it had granted orders in the miscellaneous application proceedings where the 2nd Respondent had merely sought for security to accompany him to attach the property of the person he believed to be the owner thereof and loanee/defaulter, on instructions of the 1st Respondent.

42. The Court made the order on 22. 9.2016 but the Applicant claims that it was not made aware of the ruling until much later and that upon seeking advise of the Court, he was advised to appeal against the said ruling in the High Court.  However, time for filing an appeal had lapsed and hence this application for extension of time to file an appeal out of time.

43. The main question, from the above facts is whether the Order made on 22. 9.2016 is appealable as a matter of right or leave to appeal should have first been obtained from the Court that made the Order.

44. The impugned Ruling was brief and had the effect of closing the file and directing the Registry to open a new file for the Objector.

45. The general rule is that every decree may be appealed from unless barred by some law. However, an appeal does not automatically lie against every order.  Where time for filing of an appeal as stipulated in law or the rules has expired, the court is empowered to grant extension of such period. This power to extend the time for filing an appeal out of time is discretionary.

46. Leave to appeal will normally be granted where prima facie it appears that there are grounds which merit serious judicial consideration. This is because Section 79 G of the Civil Procedure Act allows an appeal to be considered out of the period stipulated for filing of the same.

47. However, Section 75 of the Civil Procedure Act on “Orders from which Appeals lie Stipulates:

(1) An appeal shall be as of right from the following orders and shall also lie from any other order with leave of the Court making such Order of the Court to which an appeal would lie if leave were granted:

(a) An order superseding an arbitration where the award has not been completed within the period allowed by the Court.

(b) An order on an award stated in the form of a special case.

(c) An Order modifying or correcting an Award

(d) An order staying or refusing to stay a suit where there is an agreement to refer to arbitration

(e) An order filing or refusing to file an award in an arbitration without the intervention of the court

(f) An order under section 64 of the Act

(g) An order under any of the provisions of this Act imposing a fine or directing the arrest or detention in prison of any person except where the arrest or detention is in execution of a decree

(h) Any order made under these rules from which an appeal is expressly allowed by rules

(2) No appeal shall lie from any order passed in appeal under this section.

48. On the other hand, Order 43 of the Civil Procedure Rules gives a long list of orders from which an appeal lies from as of right. It therefore follows that if one wishes to appeal on an order  that is not on the list under Order 43 of the Civil Procedure Rules, one must seek leave of court.

49. The said Order 43 is the procedural Order for section 75 of the Civil Procedure Act. It provides: “Appeals from Orders:”

Anappeal  shall lie with as of right from the following orders  and rules under the provisions   of section 75 (1)(h) of the Act:

(a) Order 1 (parties to suits);

(b) Order 2 (pleadings generally);

(c) Order 3 (frame and institution of suit);

(d) Order 4, rule 9 (return of plaint);

(e) Order 7, rule 12 (exclusion of counterclaim);

(f) Order 8 (amendment of pleadings);

(g) Order 10, rule 11 (setting aside judgment in default of appearance).

(h) Order 12, rule 7 (setting aside judgment or dismissal for non-attendance);

(i) Order 15, rules 10, 12 and 18 (sanctions against witnesses and parties in certain cases);

(j) Order 19 (affidavits);

(k) Order 22, rules 25, 57, 61(3) and 73 (orders in execution);

(l) Order 23, rule 7 (trial of claim of third person in attachment of debts);

(m) Order 24, rules 5, 6 and 7 (legal representatives);

(n) Order 25, rule 5 (compromise of a suit);

(o) Order 26, rules 1 and 5(2) (security for costs);

(p) Order 27, rules 3 and 10 (payment into court and tender);

(q) Order 28, rule 4 (orders in proceedings against the Government);

(r) Order 34 (interpleader);

(s) Order 36, rules 5, 7 and 10 (summary procedure);

(t) Order 39, rules 2, 4 and 6 (furnishing security);

(u) Order 40, rules 1, 2, 3, 7 and 11 (temporary injunctions);

(v) Order 41, rules 1 and 4 (receivers);

(w) Order 42, rules 3, 14, 21, 23 and 35 (appeals);

(x) Order 45, rule 3 (application for review);

(y) Order 50, rule 6 (enlargement of time);

(z) Order 52, rules 4, 5, 6 and 7 (advocates);

(aa) Order 53 (judicial review orders).

a.  An appeal shall lie with the leave of the court from any other order made under these Rules.

b.  …….

c.  …….

20. This court  has the jurisdiction to hear  and  determine  appeals from tribunals, subordinate  courts  or bodies  as prescribed  by Article 165 of the Constitution and other Acts  of  Parliament.  Nonetheless a party who desires  to file an appeal to this court has a duty to demonstrate  under what  law that  right  to be heard  on an appeal  is conferred or if not, show that  leave has been granted by the court that made the order which is impugned  to lodge  the appeal before  the court.

21. The above position was espoused by the Court of Appeal in Nyutu Agrovet  Ltd V Airtel Networks Limited (2015) e KLR.  The court in the above decision also held that leave to appeal does not constitute the right to appeal.  The right must    precede leave. The Court of Appeal  in the above  Nyutu Agrovet Ltd case (supra) cited with  approval the decision by Ringera J ( as he  then was ) in Nova Chemicals  Ltd  vs Alcon International  Ltd HC MISC APPL 1124/2002 where the learned  judge held that:

“ the point of departure  must be  the recognition that the right  of appeal, with or  without  leave, must be conferred  by statute  and the same  is never to be implied”.The Court of Appeal further stated that:

“…….and even Section 75 of the Civil Procedure  Act, giving  this court  jurisdiction to hear  appeals from the High court, should be  read  to mean  that these provisions  of law also  confer the right of appeal on the  litigants.  The power  or authority  to hear an appeal is not synonymous  with the right  of appeal which a  litigant  should demonstrate  that  a given law gives  him or her to  come before  this court.  To me, even if  jurisdiction and the right of appeal may be referred to  side  by side  or in the same breath, the two terms  do not  mean one  and the same thing.  It is not in dispute that jurisdiction as well as the right of appeal must be conferred by law, not by implication or inference.  If the power and authority of or for a court    to entertain a matter (jurisdiction) is not conferred by law then that court has no business   to entertain the matter.  (see owners of the Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd (1989) KLR 1.

22. I have carefully examined the ruling made by the trial court in the form of directions. It does appear that there is no clear provision of the law under which the trial court made the order. However, as the order was general and advisory in nature, it could be made under the inherent jurisdiction of the court as stipulated in section 3A of the Civil procedure Act, or under section         3 of the Civil Procedure Act, being the special jurisdiction of the court being invoked to meet the ends of justice

23. The proceedings before the subordinate court, subject   matter of this application were and are civil proceedings governed by the Civil Procedure Act and Rules made there under. However, I find no provision that confers upon the appellant the”right  of appeal” under the inherent or special jurisdiction of the court under the Civil Procedure Act..

23. In addition, Section 5 of the Civil procedure  Act  on jurisdiction of  the courts is clear that any court  shall, subject  to the provisions  herein  contained have jurisdiction  to try  all suits of which its  cognizance  is either  expressly or impliedly  barred.”

24. What  I gather  from the  above  provisions  and the definition of  Rules  to mean “Rules  and Forms  made by the Rules Committee to regulate procedure  of court” is that any  issue  arising  in the  course of  proceedings  requiring  a determination by the court, and where  the court does pronounce  itself, then that  pronouncement  is made by the court  in the exercise of  its  civil jurisdiction  under the Civil Procedure Act  and  the Rules made  there under.

25. There is no dispute that the intended appeal arises from an order of directions to the registry and parties to open a new file for the ventilation of the grievance raised by the applicant herein.  It  is not in dispute  that Section 75  of the Civil Procedure Act  specifies the orders from which  parties  have a right of appeal, without leave, which implies  that in certain other orders a party  would require  leave of the  court to file  an appeal.  The order for directions as give n by the trial court is not listed as one which is appealable   as a matter of right.  That being the case, leave to appeal from the court that made the said order was necessary as it is not exempt from the requirement of leave under Order 43 of the Civil Procedure Rules.

26. It follows that that Order having been made  under  the  Civil Procedure Rules and without leave of the court that made the order, then this court is  deprived  of  jurisdiction to hear and  determine the application and the intended appeal.  In  my view, it is  that leave from the trial court  which would confer  this court with the jurisdiction to hear the  appeal and with  respect to the appellant’s counsel’s submissions, jurisdictional issues  are  not matters that fall in the category of procedural technicalities.  They go to  the root of the matter, for, without  jurisdiction, this court  or any  other court  would be acting in vain.(see Owners  of Motor Vessels “Lilian S”) (supra).

26. The Court of Appeal in CA Nairobi 86 of 2015 Peter Nyaga Murake v Joseph Mutunga, while making reference to failure to seek leave to appeal from an order stated:

“ without leave  of the High Court, the applicant was not entitled  to give Notice of Appeal where, as in this case, leave  to appeal is necessary by dint of Section 75  of the Civil Procedure  Act  and Order 43  of the Civil Procedure Rules, the procurement of leave  to appeal is  sine  qua non  to the lodging of the Notice  of Appeal.  Without leave, there can be no valid Notice of Appeal.  And without a valid Notice of Appeal, the jurisdiction of this court is not properly invoked.  In short, an application for stay in an intended appeal against an order which is appealable only with leave which has not been sought and obtained is dead in the water”.

30. Albeit Article 159(2) (d) of the Constitution has been invoked by the applicant arguing that the application herein is based on procedural technicalities hence it should be dismissed, I disagree.  As earlier stated, jurisdictional issues are not procedural requirements for without jurisdiction, the court acts in vain.  As was held in  Kakuta Maimai Hamisi v Peris Pesi  Tobiko &  2 Others (2013) e KLR, that:

“the right of appeal goes to jurisdiction  and is  so fundamental that  we are  unprepared to hold that absence of  statutory donation or conferment is a  mere procedural  technicality to be ignored by parties  or a court  by pitching  tent at  Article 159(2) (d)  of the  Constitution.  We do not  consider  Article  159 (2) (d) of the Constitution  to be a panacea, nay , a general white  wash, that cures  and mends  all ills, misdeeds and defaults of litigation”.

31. The same  Court of Appeal in Mumo Matemu  v Trusted Society of Human Rights  Alliance  & 5 Others  CA 290 of 2012  ( five Judge Bench)  stated succinctly  thus, concerning  the issue of taking umbrage  under Article  159(2) (d) of the Constitution.

“In our  view it is a  misconception to claim, as it  has been in recent  times with increased  frequency, that  compliance  with rules of procedure is  antithetical  to Article  159 of the  Constitution and the overriding objective  principle  of Section 1A and  1 B  of the Civil Procedure  Act Cap  21 and Section  3A  and 3B of the Appellate  Jurisdiction Act (Cap 9).  Procedure is also a hand maiden  of just determination of cases”.

32. In the same  breath, having already found that  jurisdiction stands on a higher  pedestal and in a more  peremptory  position  than procedural rules and that  the requirements  for leave to appeal  as was in this matter is a  jurisdictional issue, I can only reiterate  that it  goes to the very heart  of substantive   validity of court processes and determination  and certainly  does not  run a foul  the substantive  procedure, dichotomy of Article 159 of the Constitution.

33. Nyarangi JA  in the case of  Owners of Motor  Vessel “ Lilian S” v Caltex Oil (K) Ltd (1989) KLR 1 stated:

“……….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 downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction”.

34. Consequently, I find and hold that the application herein as filed is incompetent.  It was filed without leave of the court that made the order which is sought to be challenged, and which order is not appealable as a matter of right. The application dated  2th June, 2018 is dismissed with costs to the respondent.

Dated, signed and delivered in open court at Siaya this 29th day of October, 2018.

R.E.ABURILI

JUDGE

In the presence of:

Mr Oduor h/b for Mr Wakla advocate for the applicant

Mr Okello h/b for Miss Ongira for the Respondents

CA: Brenda and Modestar