Hannah Njoki T/A Rose Wood Hardware v Dennis Ngaii Ndua [2015] KEHC 7586 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

CIVIL   APPEAL NO.  388   OF 2013

HANNAH NJOKI

T/A ROSE WOOD HARDWARE………APPELLANT/APPLICANT

VERSUS

DENNIS NGAII NDUA …………………………………RESPONDENT

RULING

This ruling follows an application by way of Notice of Motion dated 12th August 2013 by the objector/applicant/appellant.  The same is brought under the provisions of Order 43 Rules 2 and 3 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act.

The applicant seeks for order that:-

The  amount  of Kshs  214,583  paid  vide cheque No. 0003 together  with Kshs 49,200/- paid to the  plaintiff/respondent through  Fantasy Auctioneers be deposited  in court pending  the hearing  and determination  of this appeal.

That Fantasy Auctioneers who are the plaintiff’s agents be ordered to deposit in court a sum of Kshs 8,000/- being the ten jerricans of Apex paints which were confiscated on 17th June 2013 while purporting to execute the lower court decree.

A declaration that the amounts paid to Fantasy Auctioneers Kshs 363,783 is over and above what was sought in the decree.

That   upon grant of prayer No. 3 above and upon determination of the appeal the monies be refunded to the objector/appellant.

The respondent/plaintiff be ordered to pay damages to the objector /applicant for breaking and causing malicious damages to the door grills unnecessarily.

Any other relief that this court may deem fit to grant.

The application is predicated   on the grounds that:

The objector/appellant is aggrieved with the ruling of the trial magistrate in a CM CC 2317/2012 and has filed an appeal.

The amounts paid to the respondent through their agents /servants Fantasy Auctioneers was over and above what they sought in the decree.

The respondents/agents, servants confiscated ten jerricans of worth 8,000/- when executing the decree.

The respondent/plaintiff agents  applied  unnecessary  force  and caused  extensive damages  to the door grills  and that the  respondent  should  meet  the damage.

The lower court orders of 31st May 2013 have caused crystallized damage to the objector/applicant.

In the affidavit  of Hannah Njoki  sworn on  12th August  2013, it is  deposed  that the Auctioneers –Fantasy Auctioneers  did break  into the appellant’s premises and they took away  goods.  That they were in the company of police escort and used unnecessary force and intimidation thereby coercing her husband to issue them a cheque and Kshs 49,200 as police costs. It is further deposed that the cheque was for Kshs 214,583 No. 00003 which was paid to the respondent herein was in excess of decretal sum.  That the auctioneers further took with them her 10 jerricans of her Apex paint worth Kshs 8,000.

She therefore prayed that all the money paid to the respondent through the auctioneers be deposited in court pending hearing and determination of this appeal.  It is in excess  of what the decree  demanded  and that  they be further ordered to pay Kshs  8000/-, the value of 10 jerricans  of Apex paint  since she  had also  suffered  damage following  the break into her business premises , using  unnecessary  force.

The respondent  Dennis Ngaii Ndua, who was  the plaintiff in the subordinate  court   did not file any  replying affidavit  to the  applicant’s application dated  12th August  2013, despite   being given  an opportunity to do so  on 25th September 2014, 9th October 2014 and 10th November 2014.  When the application came up for mention on 25th November 2014, the respondent’s counsel did not attend court and neither had they filed any replying affidavit.

The respondent’s counsel  nevertheless did , on  5th December  2014  file their written  submissions  in which they  deny the allegations by the applicant and pray for  dismissal  of the  applicant’s  application with costs. With utmost respect to the respondent’s counsel, they cannot be permitted to ambush the applicant with written submissions based on no affidavit responding to issues of fact pleaded and deposed by the applicant.  I have examined the  said respondent’s  submissions  and they  purely respond to matters  of fact  alluded to in the  affidavit  by the  appellant.  No single point of law is raised.  Consequently, I strike out the respondent’s submissions from the record as being an abuse of the court process, as counsel cannot purport to adduce evidence on behalf of his client from the bar,denying matters of fact leveled against their client.  The respondent had ample time to file a replying affidavit  or grounds of opposition to the application but they squandered  that opportunity and cannot  by any stretch of imagination  be  allowed to emerge  through written  submissions that raise  no single  point of law.

It would in my view, be prejudicial  to the applicant  to allow the  respondent’s  counsel to  adduce evidence  in defence of his client  from the bar, when they had an opportunity  to challenge  all the allegations leveled against  him.

The applicant on the other hand  filed  her written  submissions on 7th November 2014  expounding  on the grounds and  supporting  affidavit  and reiterating her contention  against  the respondent.

I have carefully examined  and considered  the applicant’s application , her supporting  affidavit  and the written submissions  by her counsel  and the law  upon which  the application is premised.

The applicant relies on order 43 Rules 2 and 3 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act.  From  the onset, the  provisions  of Order 43  of the Civil Procedure  Act  as  cited  have no  relevance  to these  proceedings.  The said provisions relate   to Appeals from orders.  Under  Order 43 (2), the Rules of Order  42 which relate  to appeals, shall apply, so far as may be, to appeals  from orders. 3.  Nothing in this order shall apply to any adjudication which, as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit.

In her submissions, the applicant’s counsel never alluded to the relevance of the provisions of the law under which the application was brought.  Instead,  she  complained  that the court did  stay execution  pursuant  to Order 22 Rules 51,52,53  of the  Civil Procedure Rules and on 31st May 2013  “she made  ambiguous orders which  saw Fantasy Auctioneers  break into  the objector’s business with the  assistance  of the police and carry the  objectors goods.”

Section 3A of the Civil Procedure Act  empowers  this court  to invoke its  inherent  power to make  such orders as may be necessary for the ends  of  justice, or to prevent  abuse of  the process of the court. I will therefore invoke the said provisions and proceed to determine this application on merits.

My examination of the lower court  record,  the ruling  on objection proceedings  made  on 31st May 2013  by the trial magistrate  reveal that upon the objection by the  appellant  herein being dismissed  on  31st May 2015, the respondent  proceeded  with  execution  and an attachment  was  levied  against  those items  that the  trial magistrate  had found  in her ruling did not belong  to the objector  as had  been claimed  in the objector’s application objecting  to attachment.  The trial magistrate further made it clear as to which of those items it had been proved belonged to the objector could not be attached to satisfy decree.

The  appellant  having been dissatisfied  with the said  ruling of 31st May 2013  and having  obtained leave on 27th June 2013  to  appeal against  the said ruling,  is now  seeking  in her application dated  12th August  2013  to have the amount paid  to the auctioneers  for onward transmission to the decree holder, which amount  included  the decretal sum, auctioneers  changes and police  assistance  fees, to be deposited in  court, or the excess  thereof refunded to her. With utmost  respect, the prayer sought  as above  cannot be issued  by this  court for  reasons  that the  auctioneers  were agents  of the court  and  they were executing  decree of this  court.   The court below having dismissed the applicant’s objection proceedings, she can only seek relief from this court by way of an appeal being heard and determined on merit.

Furthermore, the objector does not  disclose  in her  affidavit  whether she is the  one who paid  the Kshs 214,583 via cheque  No. 00003 together  with Kshs 49,200/- which  she claims   was in excess of the decree.  The question that begs answers is that the applicant/objector /appellant herein was not a party to the original proceedings in the lower court and there was no decree passed against her. She only came in as an objector and resisted any attempt to attach properties that she considered belonged to her and not the judgment debtor. How  then did she  end up paying the monies  that she  now seeks refund of excess or depositing  into court of the whole amount  paid out to  the respondent  decree holder  through fantasy auctioneers?

In my view, as the appellant was not a party to the proceedings and she as she was under no duty to settle the decretal sum since there was not order made against her by the trial court, and if the amount paid by the judgment debtor who happens to be her spouse was in excess of the decretal sum, then only the judgment debtor can seek a reimbursement of excess money paid out, and not the objector/appellant.

On the other hand, if the applicant believes  that her  property  was illegally attached  and sold in execution of decree  to which she was not  a party, then  she can ventilate  that in this appeal and should the appeal be determined  in her favour, she would be entitled  to such  reimbursement  or compensation.

Curiously, the judgment debtor has not appealed and neither is he complaining that he paid out more than the decree demanded. Neither did he file any affidavit contending that the items attached and confirmed by the trial court as belonging to him were his.

The auctioneers , George Gitonga Muchiri  T/A Fantasy Auctioneers did on 12th June 2013  obtain  a court order  for police  assistance  to enable  them access the business premises to remove  the proclaimed  goods  apart from iron sheets  and cement  as per the order of  31st May 2013.

My perusal  of the record  does not  show that the said  attached goods  were  ever  removed  or sold subsequent to the order of the trial magistrate as there is every evidence that the judgment debtor settled the claim in full on 17th June 2013 vide cheque  No. 000003 dated 17th June 2013  for Kshs  214,583.  The said cheque  which is  on record  and attached to the objector’s own affidavit  sworn 24th June  2013 is drawn on A/C No. 1074093001 with  Chase Bank Ngara Branch, in the account name of Andrew  Kamau Ngugi, who  was/is  the defendant/judgment debtor  in CMCC 2317/2012.

For the above reasons, the application herein as filed seeking for depositing in court of Kshs 214,583 is devoid of merit and that prayer is dismissed.

On whether Kshs 49,200/- allegedly  paid to the decree  holder through fantasy  auctioneers  should  also be deposited  in court, the applicant in paragraph  33 of her affidavit  in support  of this  application deposes  that this amount  was demanded  as police costs and she avers that  her husband the judgment debtor  was  coerced and intimidated into paying  this  money together  with the cheque  mentioned  above, which exceeded  the decretal sum.

My finding is that the decree in the lower court is clear.  It was against one Andrew Kamau Ngugi, who was the defendant/judgment debtor and not Hannah Njoki T/A Rose Wood Hardware. The cheque was not in her name. It is therefore  incomprehensible how the applicant herein, who  did not pay out the monies  complained  of can urge this court  to make  orders for  depositing  of the said  monies  into court, when  the judgment  debtor  who  paid out  the said money is well and alive and silent about it. The appellant/objector may be an overzealous wife who is ready to protect family property to the teeth but that protection is, regrettably, not available, in law and in the circumstances of this case. The applicant has not brought this appeal in a representative capacity.  As a result, the prayers sought are incompetent and therefore not available to her.

The same fate befalls prayer No.  C which seeks for a declaration that the amounts paid to Fantasy Auctioneers-Kshs 363,783 is over and above what was sought in the decree.  It is clear that  the appellant was not  the judgment debtor and neither  were her  property, as  an objector,  sold to realize  the decretal  sum, since it is apparent  that when the  auctioneers  went to break in to take  possession of the proclaimed goods with the assistance  of police  on 17th June 2013, the judgment debtor  did pay the auctioneers  all the decretal sum of Kshs 176,983 together with auctioneers  costs and costs incurred  in hiring police  assistance.  Whether that  amount  was in excess  of the decretal sum or not, only the judgment  debtor  who settled  the sums  can  claim to have over paid , and not the   objector/applicant  herein as she is  a stranger  to the payments made and to the decree.

On what the  prayer that should this  court determine  that the amount  paid to the Fantasy Auctioneers  were  over and above the decretal sum, then upon determination of the appeal, the said monies  be refunded to the  objector/appellant  herein, I find that having held that the appellant did not pay any monies to the auctioneers  or the  respondent, and as she has not  claimed  or proved  that any of her personal property  or assets  were  attached  and sold in execution of decree  to which  she was not party, this court cannot make any  order in her favour  as it shall be in vain, and  as such order can only be made in the appeal an not in an interlocutory application of this nature.  I therefore decline to grant the prayer.

The  applicant/appellant  has also sought an  order for damages  to be paid to her for the breaking  and causing  malicious damages  to the door  grills  of her business premises unnecessarily.

Regrettably, such a prayer is not available to her in these appeal proceedings, assuming her complaint is well founded.  She can only lodge such a claim for damages against the auctioneer in separate proceedings and prove her claim, as those damages have to be quantified and assessed.  This court cannot turn itself into a trial court at this stage and engage  in the process of typing to determine damages  occasioned  as a result of unnecessary breaking of the  applicant’s premises, which damages  are unknown. I therefore decline to grant that prayer and dismiss it.

The applicant/appellant also sought an order  for compensation  of Kshs 8,000/- being  the value of ten jerricans of Apex paint  confiscated  by the auctioneers  on 17th June 2013  while  purporting  to execute  the decree.  This is a matter, in my view, which is  criminal in nature and  the applicant’s  remedy lies on lodging  a complaint  with the police for  investigation and possible  prosecution  of the culprits  in the event  that there  is evidence  of culpability. the appellant can also lodge a formal complaint with the Auctioneers Licensing Board against the individual auctioneer if she believes that the action by the auctioneer amounted to an actionable misconduct, since the allegation of fact concerning the taking  of the ten jerricans  of Apex paint  valued at Kshs 8,000/- has not been  controverted  or denied  by the respondent or auctioneer.

Nonetheless, it has not  been alleged  that the respondent is the person who was paid the proceeds of sale of the ten jerricans as the  record is clear  that the money paid by the judgment  debtor  to the auctioneers  was  sufficient  to cover  the decretal sum  and other  expenses.  There was therefore no reason for the auctioneer to take possession of any other property. Regrettably, the auctioneers  are  not parties  to this appeal and  even if  they were, that  money  or those  items can only be  recoverable  through an independent  suit filed  by the objector, as it is a special damage suffered  by her.

The applicant also seeks that this court orders the auctioneers to deposit the Kshs 8,000/- in court.  This court declines to grant that prayer   for the reasons given above.

The upshot  of all the above expositions is that  the applicant/appellant  has  not demonstrated  to this court that  she is  entitled  to any  of the prayers  sought.  Consequently, the application dated 12th August 2013 by way of Notice of Motion is declined and dismissed.  As the respondent did not respond or oppose the said application, I make no orders as to costs.

I direct that as the lower court record is now available, the appeal be placed before a judge of the High Court civil Division for perusal and consideration under Section 79B of the Civil Procedure Act, as to the admission or otherwise forthwith.

Dated, signed and delivered at Nairobi this 14th day of May 2015

R.E. BURILI

JUDGE

14. 5.2015

Coram Aburili J

C.C. Kavata

Mr Githinji holding brief for Wandago for the respondent

No appearance for A.N Oeri for appellant

(Pupil Mr Ndungu from Oeri’s office present)

COURT- Ruling was to be delivered on 26th February 2015 but was inadvertently omitted from the cause list and parties did not attend court then.

Ruling now read and pronounced in open court as scheduled and parties notified in advance.

R.E. ABURILI

JUDGE

14/5/2015