Kituo Cha Sheria v Gil Adiz Advertising Company Ltd [2023] KEHC 25743 (KLR)

Kituo Cha Sheria v Gil Adiz Advertising Company Ltd (Civil Appeal E251 of 2023) [2023] KEHC 25743 (KLR) (21 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25743 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal E251 of 2023

DKN Magare, J

November 21, 2023

Between

Kituo Cha Sheria

Appellant

and

Gil Adiz Advertising Company Ltd

Respondent

Judgment

1. The Appellant filed an appeal dated 14/9/2023, on the following grounds: -a.The Honourable Court erred in law and in fact by hearing and delivering judgment without jurisdiction.b.The Honourable Learned Magistrate erred in failing to consider facts correctly.c.The Honourable Learned Magistrate erred by failing to appreciate to the content of the counter claim as laid before him.

2. The Plaintiff filed submissions dated 16/10/2023.

3. They stated that the case was heard outside 60 days contrary to section 34 (1) of the Small Claims Act. They relied on a persuasive authority of Katatar Sing Dhupar Company Ltd. versus ARM Cement PLc 229 of 2022.

4. On the second ground they stated that the court made a factual error. The question raised was a question of fact. There is no issue of law raised.

5. Under section 38 of the Small Claims Court, the Court can only hear matters of law and not matters of fact. Consequently, grounds 2 and 3 are dismissed in limine.

6. In the cases of Crown Beverages Limited v MFI Document Solutions Limited (Civil Appeal E833 of 2021) [2023] KEHC 58 (KLR) (Civ) (17 January 2023) (Judgment), Justice Majanja stated as follows: -“Although section 34(2) of the SCCA is couched in mandatory terms, the court must look at the context of the provision in light of the guiding principles which include, inter alia, the timely disposal of all proceedings before the court using the least expensive method. The provision as to delivery of judgment is meant to be directory and not mandatory as it is not the intention of the SCCA to invalidate any proceedings that violate the statutory timelines. To adopt such a position would undermine the statutory objects and cause injustice to the parties as the case would have to be reheard.10. The issue of breach of timelines for delivery of judgment is not a novel issue and has been dealt with by our courts in reference to order 21 rule 1 of the Civil Procedure Rules which provides that judgments must be delivered within 60 days upon conclusion of the hearing. In Nyagwoka Ogora alias Kennedy Kemoni Bwogora v Francis Osoro Maiko Civil Appeal No 271 of 2000 (UR) the Court of Appeal observed as follows:The real question is what is the consequence of non-compliance therewith? no doubt that rule is an important one in the expeditious dispensation of justice. And it is made to be obeyed. However, if non-compliance with the rule were to have the effect contended for by the appellant, we think the overall result would be more injustice than justice to the parties. A lot of time and resources spent in litigation would come to naught if judgments delivered after the expiry of 42 days were to be voided or declared void ipso facto. The rule cannot and in our view could not have been intended to deprive a trial judge of his jurisdiction to write and pronounce judgment in a case he has heard. In our considered view, while non-compliance with the rule and particularly persistent non-compliance or inordinate delay in compliance should call for censure of the judicial officer concerned from those in-charge of judicial administration, it should not be a ground for vitiating a duly delivered judgment. Being of that persuasion we would reject ground 1 of appeal.11. There may be instances where the delay is inordinate and such delay prejudicial to the parties. In such cases, the court may set aside the judgment as was held by the Court of Appeal in Manchester Outfitters Services Limited and Another v Standard Chartered Financial Services Limited and Another [2002] eKLR. The appellant does not contend that the failure to deliver the judgment within the stipulated timelines was prejudicial or that the delay was inordinate. I therefore reject the appellant’s contention that the judgment is null and void.

7. In the case of Biosystems Consultants v Nyali Links Arcade (Civil Appeal E185 of 2023) [2023] KEHC 21068 (KLR) (31 July 2023) (Ruling), I stated as doth and nothing has since changed: -“The legislative intent of section 34 of the was not to impose unnecessary bottlenecks. Even tax statutes have timelines for paying or declaring taxes. It was never that non-payment made those taxes void. There should be consequences. In the, the non-compliance with deadlines did not vitiate the taxes. It attracted known penalties. What were the consequences under section 34 of the small claims court? 13. A court was not entitled to impose a penalty that was not hitherto anticipated. The parties must know, a priori, the consequences of their actions. Any act, especially one promoting certain aspects of the could not be read mechanically. A purposive interpretation should be given to statutes so as to reveal the intention of the statute. The purpose of the was to facilitate expeditious disposal of the disputes while at the same time respecting the right to be heard. The net result was that balancing the two may result at times to overshooting the 60 days. The 60 days did not have penal consequences for good reason. They were aspirational. That was part of having access to justice over amounts that needed not being the normal system. Allowing the application would open floodgates that would eventually defeat the purpose of the Act.14. The non- compliance went to the court’s performance and was answerable internally. It could not affect parties who were in court and ready to be heard. Defendants used various gimmicks to have matters adjourned and thereafter turned around to say, 60 days were over. The parties had wasted a full month arguing in the court and with preliminary objections that were much ado about nothing.

8. The High Court has not settled the question with finality. However, the majority position is that the pursuit, excess, days must be prejudicial. The Court was not right in going over 6 months. However, there was no prejudice the Applicant will suffer.

9. The Court decided the matter before it. I am not going to have undue regard to procedural technicalities. Article 159 of the Constitution provides as follows: -“Judicial authority (1) Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution. (2) In exercising judicial authority, the courts and tribunals shall be guided by the following principles—a.justice shall be done to all, irrespective of status;b.justice shall not be delayed;c.alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3);d.justice shall be administered without undue regard to procedural technicalities; ande.the purpose and principles of this Constitution shall be protected and promoted.

10. In this regard, the Appeal lacks merit, it is accordingly dismissed with costs of 65,000/=.

Determination 11. In the premises I make the following orders: -a.The appeal lacks merit.b.The appeal is dismissed with cost of Kshs. 65,000/= to the Respondent.c.The fie is closed.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 21ST DAY OF NOVEMBER, 2023. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:No appearance for partiesCourt Assistant - Brian