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JudgmentDANROS KENYA LIMITED VS DAVID MAKOBI LUMWAMU11 min read

DANROS KENYA LIMITED VS DAVID MAKOBI LUMWAMU

High Court at Milimani High Court · · Alexander Muasya Muteti


(Being an appeal from the Judgment of  the Chief Magistrate’s Court, Nairobi delivered on the 21st October, 2020 by Hon. E.M KAGONI in CMCC No. 7336 of 2015)

JUDGEMENT

INTODUCTION

  1. The appellant   in this appeal is aggrieved by the fact that the learned Honourable Court dismissed their suit on the basis of non-compliance with Order 4 Rule (1) (4) of the Civil Procedure Rules 2010 without considering the substantive claim on liability and quantum.
  2. The appellant has raised 6 grounds of appeal to wit:
  3. that the learned Honourable Magistrate erred in law by dismissing the suit dismissing the suit for non-compliance with Order 4 Rule 1 (4) of the Civil Procedure Rules dispute the same being an undue technicality as described or envisaged under Article 159 (2)(d) of the Constitution.
  4. That the Learned Honourable Magistrate erred in law and fact by disregarding the fact that the suit was filed by the Insurance Company under it subrogation rights.
  5. that the learned Honourable magistrate erred in failing to determine the substantial claim before him being liability and quantum.
  6. that the learned Honourable Magistrate erred in admitting a ground raised by the defence in their submission which ought to have been realized at the pre-trial stage or at any other point before the hearing of the matter.
  7. That the learned Honourable Magistrate erred in disregarding the testimony of the Appellants witness in particular the legal officer from the Insurance Company.
  8. that the Learned Honourable Magistrate erred infact and law by making a determination on the need to call officials of the plaintiff company despite acknowledging the right of the Insurance.
  9. The issues that arise from the grounds raised by the Appellant are:
  10. Whether the non-compliance with the provisions of Order 4 Rule 1 (4) of the Civil Procedure Rule is fatal to the institution of a suit by a company considering as the provisions of Article 159 (2) (d) of the Constitution.
  11. Whether under the principle of subrogation the Appellant was entitled to recover the damages suffered from a third party tortfeasor.
  12. Whether the issue of non-compliance with the order 4 Rule 1 (4) could be raised at the submissions stage and entertained by the court without giving the Appellant an opportunity to respond to it
  13. Whether the learned Honourable Magistrate was correct in disregarding the evidence tendered by the legal officer of the insurance.
  14. Whether the learned Honourable Magistrate was right in failing to make a finding on liability and quantum

ANALYSIS AND DETERMINATION

  1. The Appellant vide a plaint dated the 7th June 2018 and filed in court on 15th August 2018 sought to recover damaged from the Respondent following an accident that occurred on the 18th October 2015 along Mombasa Nairobi Highway.
  2. The Appellant was described in paragraph 1 of the plaint as “a limited Liability Company duly incorporated under the laws of Kenya”.
  3. The accident involved Motor Vehicles KCE 040 J registered in the name of the plaintiff and Motor Vehicle KBP 797 Q registered in the name of the Respondent.
  4. The Appellants claim was that  as a result  of the Accident it had suffered  loss and damage amounting to Ksh. 2,191,575/=.
  5. The Appellant maintained that at the time of the accident motor vehicle KCE 040 was insured by CIC General Insurance Col Ltd’ which settled the plaintiffs claim this its claim was brought under the principle of subrogation.
  6. The Appellant contended that the Defendant was found at fault over the Accident.
  7. The Respondent filed defence on the 22nd October 2018 denying the claim in its entirety.
  8. The matter proceeded to full hearing with the Appellant calling a total of four witnesses. The Appellant through PW 4 implored the court to find that the Respondent was liable for the sum of Ksh. 2,191,575 plus costs being the sum spent on settling the claim by the owner of motor vehicle KCE 040 J.
  9. The court upon hearing the parties invited them to file submissions and it is through the submissions file by the Respondent that the issue of non-compliance with Order 4 Rule 1 (4) was raised.
  10. The Rule in issue provides: -

Rule (4): Where the plaintiff is a corporation, the verifying affidavit shall be sworn by an officer of the company duly authorized under the seal of the company to do so.

  1. The learned Honourable Magistrate identification. The issue of the compliance with this Rule as the first issue to determine upon perusing the submissions by the parties and the evidence on record.
  2. The court proceeds to find and hold that the authority by the Appellant to the deponent of the verifying affidavit MR. John Kipkebut Chepkonga was not annexed thus in the magistrate’s opinion that omission rendered the suit incompetent and on that basis proceeded to dismiss the suit.
  3. I have independently reviewed the file and al the documents in it to ascertain whether indeed there was such authority granted to the deponent.
  4. It is this court’s view that the issue of the competence of the suit is a threshold issue that once determined that the court will have concussively dealt with the appeal considering that this was the only issue determined by the magistrate.
  5. I am inclined to take the view that once the competence of a suit is called to question then the court is basically called upon to determine the issue of jurisdiction.
  6. It is my view that if the pleadings are deemed incurably defective, the court is left with nothing to deal with thus it must down its tools.
  7. I have perused the submissions of the Appellant and on the first issue as to whether the non-compliance with Order 4 rule 1(4) was material, the appellant submits that such a challenge could only have been properly raised at the preliminary stages such as the pretrial conference.
  8. According to the Appellant to raise such a challenge at the submission stage would be prejudicial to the plaintiff since he would not have opportunity to respond.
  9. I do not with respect agree with the Appellants as to the state at which such a challenge can be taken.
  10. I have already stated that once the competence of a suit is raised then jurisdictional issue arises.
  11. A plaintiff must be accompanied by a verifying affidavit of Order 4 Rule 2. The Rule provides:-

“(2) The plaint shall be accompanied by an affidavit sworn by the plaintiff verifying the correctness of the averments contained in rule 1(1) (f) above”.

  1. The provision is mandatory and it cannot be said that a party can elect not to have the verifying affidavit accompanying the plaint. Failure by a plaintiff to have the verifying affidavit accompany  the plaint would render the suit incompetent.
  2. The verifying affidavit therefore is key to the survival of a suit to the date of judgment.
  3. Who then has authority to swear the same for and on behalf of a corporation? The answer lied in order 4 Rule 1(4). The deponent must be an officer duly authorized by the corporation under the seal of the company.
  4. The deponent who swore the verifying Affidavit MR. JOHN KIPKEBUT CHEPKONGA simply stated in paragraph ……. of the  said affidavit that:

“I am the Plaintiff’s Logistics Manager herein and have its authority to swear this affidavit on its behalf.”

  1. Notably, the deponent did not attach any document bearing the seal of the company as evidence of such authority.
  2. The drafters of order 4 Rule 1 (4) in my view must have intended that the seal be demonstrated by the deponent as the source of his authority.
  3. The failure by the deponent to place that instrument of authority before court in my view rendered the verifying affidavit worthless for it did not meet the test set out under the law.
  4. The appellant in filing the suit ought to have known the implication of not complying with the rule even without prompting by the court or the Respondent.
  5. The issue of competence of a suit being a jurisdictional issue can be raised by a party at anytime or even by the court.

Any proceedings entertained without jurisdiction are a nullity. It cannot be argued that once a party fails to raise such an issue at the preliminary stages, then they remain precluded from ever raising it.

  1. It would be near suggesting that that a party has acquiesced to a jurisdictional defect thus the court should turn a blind eye to the fact if the same is brought to its attention late in the day.
  2. Jurisdiction is defined in Halbury’s Laws of England (4th Edition) Vol. 9 as “the authority which a court has to decide matters that are litigated before itor to take cognizance of matters presented in a formal way for decision”.
  3. Further the Black’s Law Dictionary, 9th Edition defines jurisdiction as the court’s power to entertain, hear and determine a dispute before it.

From the two definitions it emerges that the dispute must be formally presented before court in for the court to exercise its power.

  1. The Civil Procedure lays out the procedure of initiating a suit formally by way of a plaint. In respect of corporations it clearly states that the corporation must signify grant of authority to anyone acting on its behalf by an instrument bearing its seal.
  2. Is it therefore permissible for anyone to purport to act on company’s behalf without demonstrating that authority? I am afraid no. The omission by Appellant to place that authority before court was inexcusable.
  3. It was not the duty of the Respondent to remind the plaintiff what the law required of them.
  4. In Owners of Motor Vessel Lilians Vs. Caltex Oil (Kenya Ltd) [1989] KLR Nyarangi, J A expressed himself thus:

“jurisdiction is everything without it a court has no power make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings”.

  1. The learned Honourable Magistrate was in my view entitle to go straight into the issue of the competence of the suit. In Jamal Salim Vs. Yussuf Abdullahi Abdi & Another Civil Appeal No. 103 of 2016 [2018] eKLR, the court stated:-

“Jurisdiction either exists or it does not. Neither can it be acquiesced or granted by consent of the parties”.

The fact that the Respondents raised it in their submissions does not lessen the importance of the matter.

  1. In Adero & Another Vs Ulinzi Sacco Society Ltd [2002] 1 KLR 577 the court held that jurisdiction is such an important matter that it can be raised at any stage of the proceedings even on appeal.
  2. I therefore find that the issue as to whether the issue of compliance with order was property taken by the Respondent in their submissions. The ground of Appeal therefore fails.
  3. I will not have done justice to that ground if I do not address myself to the question raised by the Appellant regarding Article 159 (2) (d) Vis a Vis Order 4 Rule 1 (4).
  4. It is my view that the Rule in issue is so fundamental in the initiation of suits and cannot be classified as a mere technicality of procedure.
  5. A plaint is the seminal document in a suit such as the one that was before the trial court. If the plaint is found to be defective for want of compliance with a fundamental procedural requirement, the court should be hesitant to entertain it. It is the basis upon which the court exercises jurisdiction.

It is the formal presentation of a dispute. It is defective then the court would be wrong to entertain it and act on it.

  1. A party appearing before a court on behalf of a co-operation as a deponent in support of the co-operations claim must be clothed with necessary authority.
  2. A seal of a Company confirms to authenticity of documents and action of officials purporting to act for end on behalf of the Company.

The failure to include that source of authority by the Appellant dealt its case a fatal blow. Article 159 (2) (d) of the Constitution was not intended to render rules of procedure worthless. the use of the words “undue regard” leave no doubt that there must be regard to procedural requirements.

It is the over reliance on technicalities that the framers of our Constitution must have intended to cure.

  1. If the courts were to adopt an approach that every omission to comply with procedural requirements is excusable then there would be absolutely no need for the Rules in the first place.
  2. Procedural rules are geared towards ensuring order and predictability in dispute resolution. For instance, if the courts were to allow anyone who approaches it purporting to be acting on authority of a corporation without evidence, the door would be wide open to all manner of mischief makers to file suits.
  3. Infact the requirement that plaintiff’s depone in their verifying affidavits to their being no other suits relating to the same cause of action would be meaningless because what would be the guarantee that the party before court is duly authorized without a document to prove it bearing the seal of the company.
  4. In Raila Odinga Vs. I.E.B.C  & Other [2013] eKLR The Supreme Court simply warned against paying undue regard to technicalities of procedure.
  5. The oxygen rule that the Appellant contends that the magistrate ignored in my view could not be properly invoked to remedy such a fundamental omission.
  6. Having found that the issue of the non-compliance with Order 4 Rule 1(4) went into the jurisdiction of the court and that the magistrate was correct in his determination, the appeal therefore must fail in its entirety.
  7. It would have been pointless in my view for the court to delve into matters of liability and quantum having found that the procedural lapse was fundamental.

I hold the view that the omission rendered the suit incompetent and the jurisdiction of the court having been improperly invoked and in entertaining further proceedings the court was acting in vain. It simply amounted to a waste of valuable judicial time.

CONCLUSION

The Appeal is therefore lacking in merit on account of that latent defect in the initiation of the suit.

It would be pointless for me to go into the rest of the issues raised since the issue of non-compliance with Order 4 Rule 1 (4) was the central issue that the trial court focused on in dismissing the suit.

As to whether an Insurance Company can institute a suit to recover damages from a third party under the principle of subrogation, no doubt the Insurance Company can successfully to so. However, the suit must be brought in conformity with all the procedural requirements.

The Appellant in this appeal lost that opportunity by instituting what I find to be an incompetent suit.

In view of the position this court has taken on the competence of the suit, the natural consequence is that the appeal is dismissed with costs.

It is so ordered.


    DANROS KENYA LIMITED VS DAVID MAKOBI LUMWAMU DANROS KENYA LIMITED VS DAVID MAKOBI LUMWAMU