Wycliffe M Ombale v Armstrong Kasuku & Garden Square 2001 Ltd [2013] KEHC 1019 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUSIA.

CIVIL CASE NO. 11 OF 1999.

(FORMER BUNGOMA HCC. NO. 1 OF 1997)

WYCLIFF M. OMBALE……………………………………………………PLAINTIFF/APPLICANT

VERSUS

ARMSTRONG KASUKU……………………………………………………….. DEFENDANT.

GARDEN SQUARE 2001 LTD.,…………………………………….OBJECTOR/RESPONDENT.

R U L I N G.

Wycliffe M. Ombale filed the Notice of Motion  dated 4. 7.2013, through M/S. Ipapu P. Jackah & company Advocates for orders;-

That  proceedings conducted before Hon. M. Njagi, Resident Magistrate, between 13. 7.2011 to 7. 9.2011, be declared null and void for being ultra vires the court’s jurisdiction.

That execution of taxed costs be allowed to proceed.

The  application is based on three grounds on the face of the application summarized  as follows;-

That  the Resident  Magistrate did  not have jurisdiction to hear and determine  objection proceedings as this was a High Court  case.

That the case had not been transferred to the Lower Court.

That Respondent’s counsel misled the lower court to hear a matter that was beyond its jurisdiction.

During the hearing, Mr. Ipapu appeared for the Applicant  and made his submissions.  Mr. Juma for the Respondent was allowed to make submissions on issues of law as he had not filed any papers in respect of the application.   He took the opportunity to disclose that a similar application had been before the Resident Judge on 7. 5.2011, when it was withdrawn and the current application filed.

I have carefully considered the grounds on the face of the application and  submission by counsel.  I also had the proceedings covering the period  of 6th April, 2011 to 7th September, 2011 typed to enable  the court understand better what transpired  during  that period.  The court finds as follows;-

That the costs were taxed at Kshs.71,611/= by the Deputy Registrar, Hon M.W. Njagi on 20. 4.2011.

That a warrant  of attachment  was then issued on 9th May, 2011  and proclamation made by EShikoni Agency Auctioneers.

That  Garden Square  2001  Limited, through J.V. Juma advocate filed a notice of objection to attachment dated 27. 6.2011.  The  Deputy Registrar then issued stay orders on the same date.

The Plaintiff (Decree holder),  through his advocates, M/S. Ipapu  P. Jackah & company advocates, filed the notice of intention to proceed with the execution dated 1. 7.2011 together with a notice of preliminary objection of the same date.

That  the counsel appeared before the Deputy Registrar Hon. M.W.Njagi on 13. 7.2013 when the objector’s/Respondent’s counsel, Mr. Juma,  asked the court to strike out the execution  proceedings commenced  by M/S. Ipapu & company advocates as Mr. Ipapu  did not have a current practicing  certificate.

That Order 49 Rule 7 (b)(x) of Civil Procedure Rules  clearly shows that the Deputy Registrar  has jurisdiction to  hear and determine matters relating  to Order 22 of Civil Procedure Rules except matters under Rules 28 and 75.

That  the matters dealt with by the Deputy Registrar in the proceedings of July, 2011 to September, 2011 did not fall under Order 22  Rules  28  and 75 of the Civil Procedure  Rules and therefore the Deputy Registrar  had  jurisdiction.

That the Deputy Registrar  had the powers to entertain the preliminary objection raised by Mr. Juma on the capacity of Mr. Ipapu to prepare, file  and prosecute  execution  proceedings  on behalf of  the Plaintiff/Decree  holder when he did not have a practicing certificate  for the relevant period.

That the Deputy Registrar’s  ruling  of 7th September, 2011  has not been successfully appealed against,  nor was any application to review the same filed and prosecuted,  to date.

That no judicial review  application to call into this court the relevant proceedings  and or ruling have been preferred,  and in any case the period  for such an application has lapsed in view  of the provisions of Order 53 Rule 2 of Civil Procedure Rules.

That  a High Court file need not be transferred to the Lower court for the Deputy Registrar  to deal  with applications and other processes authorized by the law like in the instant case.

That  the Deputy Registrar  gave Mr. Juma  and Mr. Ipapu  the opportunity to present the documents they had.  That Mr. Juma filed an  affidavit  annexing a letter from  Law Society  of Kenya dated  9. 6.2011 showing Mr. Ipapu  did not have a practicing certificate  for 2011. He also annexed a copy of a letter from the then Registrar High  court, dated 20. 7.2011, to the effect that Mr. Ipapu  had last obtained a practicing certificate on 7. 5.2009 and  that  the copy  of the practicing  certificate for 2011 produced in court was a forgery.

That in view of the finding  above, there is no merit to the claim that Mr. Juma  had misled  the lower court on jurisdiction.

Having  found as above, the Plaintiff/Applicant’s  application  dated 4. 7.2013  and filed in court  on 30. 7.2013 is without merit and is dismissed with costs.

S. M. KIBUNJA,

JUDGE.

DATED AND DELIVERED ON 27TH DAY OF NOVEMBER, 2013 AT BUSIA.

IN THE PRESENCE OF;