CALIKAM COMPANY LIMITED VS JOHN WAIGWA WANJIRU

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KIAMBU

CIVIL APPEAL NO. E009 OF 2024

CALIKAM COMPANY LIMITED……………………………… APPLICANT

VERSUS

JOHN WAIGWA WANJIRU….…………………..………. 1^ST RESPONDENT

CRATER VIEW AUCTIONEERS…………….…………. 2^ND RESPONDENT

RULING

BACKGROUND

1. The Objector/2^nd Respondent raised a Preliminary Objection dated 10^th June 2024 against the Memorandum of Appeal dated 22^nd January, 2024 on the following grounds: -
2. The entire Memorandum of Appeal dated 22^nd January, 2024 is fatally defective as having been filed out of time without leave of Court, hence an abuse of the court process;
3. The Memorandum of Appeal is fatally defective on the face of it as it seeks to introduce a new party being the firm known as Crater Auctioneers who were not parties to the decision being appealed from.
4. The Notice of Motion dated 24/05/2024 is a non-starter as it is seeking stay orders pending the hearing and determination of an Appeal which is fatally defective; and is thus hopelessly incompetent, fatally defective and inadmissible and the same ought to be dismissed forthwith, even suo motu;
5. The Objector prayed that the Notice of Motion herein be struck out with costs to it.
6. The Appellant/Applicant filed a Replying Affidavit in response to the Preliminary Objection stating the following grounds;
7. The Preliminary Objection was bad in law, frivolous, vexatious as it did not raise pure points of law and that it be dismissed with costs;
8. The Memorandum of Appeal dated 22/01/2024 does NOT at any point seek to introduce a new party. The averments were false and intended to deny the Appellant the right to appeal. The 2^nd Respondent had been instructed by the 1^st Respondent to proclaim, attach and sell the Appellants goods; therefore, the enjoinder to these proceedings was necessary to enable the court to effectively and completely adjudicate and settle all questions related to the subject matter;
9. If the court is constrained to find the that the enjoinment of the 2^nd Respondent to be a misjoinder this court should take into consideration Order 1 Rule 9 of the Civil Procedure Rules that provides that a suit ought not to be dismissed for mis-joinder or non-joinder of parties.
10. The Notice of Motion is a right in law as the Appellant was seeking stay of execution orders and if not granted would render the appeal nugatory;  the Appellant urged the Court to exercise its discretion and in the interest of justice to grant the orders prayed; to also dismiss the Preliminary Objection with costs to the Appellant.
11. The Appellant had filed a Notice of Motion dated 24^th May, 2024 supported by the sworn Affidavit of ALLAN KARANJA NJENGA; the application was premised under Articles 48 and 50 of the Constitution 2010, Sections 3A oft the Civil Procedure Act, Order 40 rules 1,2,4 and 5, Order 42, Order 45 Rule 1 & 2 and Order 50 Rule 6 of the Civil Procedure Rules and all other enabling provisions of the law; the Appellant sought for orders that;
12. The Court be pleased to grant stay of execution of the judgment and decree given on 24/11/2023 pending hearing and determination of this application.
13. The Court be pleased to grant stay of execution of the judgment and decree given on 24/11/2023 pending hearing and determination of this appeal against the said judgment.
14. Pending the hearing and determination of the application and appeal this Court be pleased to restrain the Objectors together with their agents jointly and severally from attaching, interfering and carrying the Appellants tools of business namely motor vehicle KCL 191Y Tata Tipper and household goods of one of the directors pending the hearing and determination of this application and appeal.
15. The costs incidental to this Application be costs be provided for.

ISSUES FOR DETERMINATION

1. After considering the Application and the written submissions by the respective parties, the court has framed the following issues for determination;
2. Whether the Court should strike out the Appeal on the basis of mere technicalities rather than the main substance of the Appeal;
3. Whether the Preliminary Objection is merited?
4. Which party should bear the costs if any;

ANALYSIS

Whether the Court should strike out the Appeal on the basis of mere technicalities rather than the Substance of the Application;

1. The 2^ndRespondent/Objector herein has raised the Preliminary Objection against the Application on two (2) limbs. The first relates to the title of the Application in that the Appellant seeks to introduce a new party being the firm known as Crater Auctioneers who were not parties to the decision being appealed from. The Objector contends that the Memorandum of Appeal be rendered as being fatally defective and it ought to be struck out.
2. In response the Appellant submitted that if the court is constrained to find the that the enjoinment of the 2^nd Respondent to be a misjoinder this court should take into consideration Order 1 Rule 9 of the Civil Procedure Rules that provides that a suit ought not to be dismissed for mis-joinder or non-joinder of parties.
3. The title of the Memorandum of Appeal reads as follows;

‘(Being an Appeal from the judgment of Hon.Lilian N. Kwamboka delivered on 24^th November, 2023 at the Chief Magistrates Court at Kikuyu in Civil Suit  No.E325 of 2022 John Waigwa Wanjiru vs Perminus Mbugue Mugo, John Mwaura Muiruri & Calikam Company Limited)’

1. The above extract reveals that the Objector was indeed not a party in the initial suit in the lower court; In the interests of justice courts have deemed such errors  as amendable to bring it under the correct title, hence upholding the right to a fair hearing and this court is satisfied that the addition of a party is a mere technicality that does not go to the root of the appeal; the mis-joinder is curable by the filing of an Amended Memorandum of Appeal and the removal of the name in this instance it being that of the Objector/ 2^nd Respondent.
2. The second limb was the failure by the Appellant to seek for leave to file the Appeal out of time which led to the filing of the Notice of Preliminary Objection herein; the Objector submitted the Appeal had been filed without following the appropriate procedure of first obtaining leave as set out in Section 79G of the Civil Procedure Act; and that the subsequent application dated 24^th May, 2024 seeks orders for stay of execution pending the hearing of the application or appeal; The said Application should be dismissed on the grounds that the Appellant failed to approach the court using the correctly laid down procedures.
3. The Appellants contention is that the failure to seek leave to enlarge time to file the appeal and any subsequent orders before leave was granted was an error and should be excused as an "undue technicality" which does not go to the root or substance of the dispute before the Court. The Appellant humbly submits that the court overlooks the undue technicality;
4. The term 'technicality' was defined by the Court in the case of Kenya Ports Authority V Kenya Power & Lighting Co. Limited [2012] eKLR by combining the meaning of the words Technical & Technical Errors:

"Combining the meanings of these words, "procedural technicalities" may be described as those that more concern the modes of proceedings and the rules involved that regulate formality and processes rather than substantive rights under law. This may not be an all-encompassing definition, but I think people generally associate procedural technicalities with annoying strictures and rules which hinder the achievement of substantial justice. '

1. This court must deal with the issue of whether the Preliminary Objection is merited which encompasses whether there is a mere technical procedural flaw or substantive one that goes to the root of the appeal.
2. A preliminary objection must first, raise a point of law based on ascertained facts and not on evidence. Second, if the objection is sustained, that should dispose of the matter. A preliminary objection is in the nature of a legal objection not based on the merits or facts of the case, but must be on pure points of law.  As was stated in Mukisa Biscuit Manufacturers Ltd v Westend Distributors Ltd [1969] E.A 696 AT Pg. 700-

“...so far as I am aware, a preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary objection may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit, to refer the dispute to arbitration.”

1. It is not in dispute that the Appellant seeks a stay of execution against the decision delivered on 24^th November, 2023; As rightly pointed out an Appeal ought to be filed within thirty (30) days from the date of delivery of the Judgment; which means that the time to file the instant appeal lapsed on 24^th December, 2023;
2. It is imperative to note the wording of Section 79G, apart from giving the High Court the jurisdiction to determine the matter; the section is couched in mandatory terms using the word ‘SHALL’. The provision uses the word ‘shall’ which makes it mandatory for a party to file its appeal within 30 days. Thereafter the Court upon being satisfied with a reasonable explanation being given may exercise its discretion and allow the enlargement of time within which to file the appeal and even deem it as filed.
3. The record on the face of it reflects on the title that the judgment was delivered on 24/11/2023 and the Appeal is dated 22^nd January, 2024 and it is reiterated that time lapsed on 24^th December, 2023; generally, there ought to be a legal request seeking permission to file an appeal once time has lapsed; before the leave or enlargement is granted the applicant must provide to the Court a satisfactory or reasonable explanation on the circumstances that led to the missing of the deadline; The court is obligated to consider factors such as length of delay, reason for delay and the prejudice it has on the parties;
4. The failure to seek leave for the enlargement of time is therefore not a mere technicality but a substantive one as it tests the foundation of the instant appeal and such failure is only curable by the Court being moved appropriately and the leave for enlargement of time being first had and obtained.
5. In the absence of any application first seeking leave to file an Appeal out of time or seeking its admission out of time as envisaged by Section 79G of the Civil Procedure Act this Court is bereft of jurisdiction to entertain the appeal as it is a nullity and the Court cannot not move one step further other than to strike it out; as such the Appeal and the accompanying application are both found to be incompetent and are hereby struck out;
6. Based on the above-mentioned reasons, this court is satisfied that the Preliminary Objection as drawn meets the desired threshold of a Preliminary Objection.

FINDINGS AND DETERMINATION

1. In the light of the forgoing reasons this court makes the following findings and determinations.
2. The Preliminary Objection is found to be with merit and it is hereby upheld;
3. The Appeal is found to be fatally defective as it was filed out of time and without leave being first had and obtained.
4. Thus, the Appeal and the application dated 24/05/2024 are both found to be incompetent and are hereby struck out.
5. Each party to bear its own costs;
6. Mention on 26/03/2025 for directions.

Orders Accordingly.

DATED, SIGNED AND DELIVERED VIA TEAMS AT KIAMBU THIS 14^TH  DAY OF MARCH, 2025.

HON. A. MSHILA

JUDGE

In the presence of;

Katunga Mbuvi - for Appellant

Buluma holding brief for Mbanda - for the Respondent/Objector

Sanja - Court Assistant