COUNTY GOVERNMENT OF TANA RIVER VS GIKANDI & COMPANY ADVOCATES

JUDGMENT

1. The appellant filed the memorandum of appeal dated 9.2.23 on the same date against the decision of Kalo JB (CM) dated 23.1.23 in Mombasa CMCC 630 of 2021 on 12 grounds which I proceed to condense into 4 grounds that:
2. The learned trial magistrate failed erred in law and fact by dismissing the appellant’s application on the sole and erroneous ground that it was Re-judicata.
3. The learned trial magistrate failed erred in law and fact to hold that the judgment as delivered on 14.10.21, filed in the face of section 21(4) and (5) of the Government proceedings Act and order 10 Rule 8 and rule 11 of the civil procedure ules 2010 are in contravention of the provisions of Article 159(2) (d) of the Constitution of Kenya 2010 a position that is not supported by any law or authorities.
4. The learned trial magistrate failed erred in law and fact by failing to consider the evidence on record and the authorities cited by the appellant.
5. The trial magistrate’s decision was self -contradictory, plainly wrong, unfair and unjust in the circumstances.
6. The appeal was admitted on 29.3.2023 and directions were given that record of appeal and submissions were to be filed by the appellant within 60 days from the date of the said directions and respondent was to file submissions within 15 days from the date of service.
7. The appellant did not file any submissions despite the said directions.
8. The respondents filed submissions dated 22.12.23. They submitted that the application was declined on the ground that it was Res-judicata and thus it was unnecessary to consider whether setting aside the judgment was justified.
9. Secondly that the appeal was filed out of time without leave of the court in contravention of section 79 G of the Civil procedure Act since the ruling of the lower court was delivered on 23.1.23 and the appeal was lodged on 28.2.23. Further that the court lacks jurisdiction to entertain such and appeal and that the same is for striking out. Counsel cited the case of Gregory Kiema Kyuma vs Marietta Syokau Kiema (1988) eKLR and Francis Mutethia v Benard Muriuki Gaturuku t/a Bensure Auctioneers (2017) eKLR.
10. On Res-judicata, counsel submitted that the law is settled that it goes to the Jurisdiction of the court and thus the court must down its tools upon a finding of Res-judicata. also, that the principle of re4sjudicata also applies to applications. It was submitted that the appellant filed application dated 9.2.2022 seeking setting aside of the Judgment on the ground that it was not served with the summons to enter appearance and the same was dismissed upon the court considering the submissions of parties. Further that a month later the appellant filed a similar application dated 15.9.22 also seeking setting aside of the judgment on the ground that it was a government and default judgment could not thus be entered against it Considering order 10 Rules 8 and 11 of the Civil procedure Rules 2010. They submitted that the new point ought to have been raised together with the grounds in the previous application and thus Res-judicata applies as was held in the case of Re-Estate of the late Laurent Ntirampeba (deceased). it was submitted that the appellant ought to have appealed against the dismissal of the first application but not file a similar application.
11. On whether the appellant is a government under order 10 rule 8, 10, and 11 and section 25 of the Government Proceedings Act, counsel submitted that the legislature appreciate the distinction between the county Government and national government and hence the amendment of cap 40 to include section 21 (5) which protects the County Governments from execution. Further that the said section only deals with post judgment process. Counsel also cited the case of Patrick Mukono Kisila t/a Mutomo Kandae general Agencies vs County Government of Kitui (2021) eKLR where it was held that ‘’. Civil proceedings for or against the National Government for example are done through the Attorney General as stipulated under Section 12 (1) of Government Proceedings Act. The same cannot be equated to the civil proceedings for and against the County Government. Section 6(1) of County Government Act clearly provides that a County Government is a body corporate which means that it has the capacity to sue to be sued in its corporate name.  ………………………………………….

The County Governments are represented by private lawyers and the County Attorneys. This means that as a matter of law the provisions of Section 13A of Government Proceeding Act do not apply to County Government and the trial Magistrate misdirected himself when it held that the Appellant should have issued notice pursuant to Section 13 (A) before suing the Respondent herein. ‘’. 

1. This is the first appellate court and the duty of this Court is to re-evaluate the evidence on record and come to its own independent decision as was held in the case of Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR.
2. . On the issue of Res-judicata section 7 of the civil procedure Act bars parties from litigating on matters between the same parties which have been finally dealt with by a court of competent jurisdiction. Section 7 of the Civil procedure Act provides “No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court”

The Black’s law Dictionary 10^th Edition also defines “res judicata” as follows

 “An issue that has been definitely settled by judicial decision…the three essentials are (1) an earlier decision on the issue, (2) a final Judgment on the merits and (3) the involvement of same parties, or parties in privity with the original parties…”

1. I have seen both applications dated 9.2.22 and 15.9.22, the one dated 9.2.22 seeks stay of execution pending intended review and the main ground raised is that summons to enter appearance were not served upon the appellant. The application dated 15.9.22 seeks setting aside of the default judgment and all the consequential orders and that the appellant be granted leave to file defence out of time. The gist of the said application is that the appellant is Government within the meaning of order 10 Rules 8 & 11 of the Civil procedure Rules and that mandatory provisions of Article 176 and 260 of the constitution of Kenya were violated. Though the appellant in the application dated 9.2.22 did not specifically seek setting aside in paragraph 6 of his supporting affidavit he deponed that failure to serve the summons to enter appearance undermines his constitutional Rights under Article 50 of the Constitution.  It is thus clear that his expectation on determination of the application was a finding that he was not served with the summons and a declaration that his right to fair hearing was violated and setting aside of the Judgment. The grounds application dated 15.9.22 in ought to have been raised in application dated 9.2.22 as was held in the case of Re-Estate of the late Laurent Ntirampeba (deceased) 2019 EKLR cited by the respondent (Supra). I read mischief in the conduct of the appellant herein of filling piecemeal applications.  I agree with the finding of the Learned Trial Magistrate that the application dated   15.9.22 is Res-judicata as the subject matter in both applications dated 9.2.22 and 15.9.22 is clearly setting aside of default judgment and they should have been raised in one application.

11. On whether the appeal is time barred, the impugned ruling was delivered on 23.1.23 and the appeal was filed on 28.2.23 instead of 23.2.23 when it was due. It is clear that the appeal was time barred and offends the provisions of Section 79 G of the Civil procedure rules. section 79 of the Civil Procedure Act provides that” Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order:

Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time”.

1. In the upshot, as rightly submitted by the respondent the appeal is incompetent as it was filed 5 days out of time without leave of the court. The same cannot stand and it is for striking out.
2. On whether sections 13 and 21 of Government proceedings Act and Order 10 of the Civil procedure Rules are applicable to the appellant.

Order 10 Rule 8 of the Civil procedure Rules provides ‘’

No judgment in default of appearance or pleading may be entered against the Government without the leave of the court and any application for leave shall be served not less than seven days before the return day’’

section 21 of the Government proceedings Act (CAP 40) provides ‘’

1. It is thus clear that county Governments are also Government within the meaning of section 13 of the Government proceedings Act. However, since I have already found that the application which is subject of this appeal is res judicata and was filed without leave of the court.  In the circumstances, whether the provisions of the Government proceedings Act were complied with or not.
2. The trial Magistrate did not err in dismissing the application dated 15.9.22.
3. The appeal is incompetent and an abuse of the process of this court and I proceed to strike it out with costs to the respondent   with costs to the respondent.

Delivered Virtually Via teams platform in the presence of: -

Aphline Owiwa-Court Assistant.

Parties absent.