REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL & TAX DIVISION
HCCOMMA NO. E199 OF 2024
(CONSOLIDATED WITH HCCOMMA NO. E200 OF 2024)
FRIDAY KINARA KING’OINA…...……...…….…..APPELLANT/APPLICANT
-VERSUS-
LAURA BAGWASI………………….…....……………………….RESPONDENT
-AND-
JONIZ WHEELS ENTERPRISES LIMITED……….…….INTERESTED PARTY
RULING
1. This ruling in respect to two applications. The first application is a Notice of Motion dated 2nd August 2024 filed in HCCOMMA No. E199 of 2024 by the appellant pursuant to the provisions of Articles 47, 159(2)(d) & (e), 165(3)(e) & 259 of the Constitution of Kenya, 2010, Sections 1A, 1B, 3 & 3A of the Civil Procedure Act, Order 42 Rule 6 of the Civil Procedure Rules, 2010, Section 10 of the High Court (Organization and Administration) Act, 2015, Section 34(4)(d) & 38 of the Small Claims Court Act and all enabling provisions of the law.
2. The appellant prays for the setting aside the orders made by Hon. B. A. Akinyi on 31st July 2024 in Milimani Small Claims Court SCCCOMM No. E2214 of 2024, which dismissed the Preliminary Objection filed therein, and directed the hearing of the suit. The appellant also seeks the setting aside of the order requiring him to provide the logbook for motor vehicle registration No. KCM 067W Volvo S40 in Court by 1st August 2024. He also prays for stay of proceedings in SCCCOMM No. E2214 of 2024 pending the hearing and determination of this appeal.
3. The application is premised on the grounds on the face of the Motion, and it is supported by an affidavit sworn on the same day by Alex Kimtai Cherongis an Advocate of the High Court of Kenya and learned Counsel for the appellant. He averred that the Hon. Adjudicator disregarded submissions, misapplied the law, and made a plainly wrong ruling on her jurisdiction. He further averred that the appellant herein has filed a Memorandum of Appeal, demonstrating that the appeal is arguable with a high probability of success.
4. Mr. Cherongis contended that the suit before the Small Claims Court involves matrimonial property and marriage disputes, which the Small Claims Court lacks jurisdiction to determine under the Magistrates Court Act, Matrimonial Property Act, and Small Claims Court Act. He asserted that the respondent admitted cohabitation, suggesting a presumption of marriage and urged this Court to grant the orders sought so that the parties herein can avoid submitting to a Court with no jurisdiction.
5. In opposition to the application, the respondent herein filed a replying affidavit sworn on 19th August 2024 by herself. She contended that the instant application and the affidavit in support thereof are fatally defective, as they were sworn by an Advocate. She averred that the Trial Court dismissed the appellant’s Preliminary Objection on the basis that it did not meet the requisite threshold, which must raise pure points of law. She asserted that this appeal lacks merits, as it solely challenges the dismissal of the Preliminary Objection. Ms Bagwasi stated that the instant application is a deliberate attempt to delay the determination of the main suit, thereby denying her the right to property enshrined under Article 40 of the Constitution of Kenya.
6. In a rejoinder, the appellant filed a further affidavit sworn on 2nd October 2024 by Alex Kimtai Cherongis an Advocate of the High Court of Kenya and learned Counsel for the appellant. He averred that the affidavit in support of the instant application contain non-contentious evidence as the averments were sourced from the Court's e-filing system, and that his affidavit complies with Order 19 Rule 3(1) of the Civil Procedure Rules, allowing statements of information and belief in interlocutory proceedings, and Rule 8 of the Advocates (Practice) Rules which permits Advocates to swear affidavits on formal or non-contentious matters. He asserted that if the orders of 31st July 2024 are executed, this appeal will be rendered moot, causing the appellant to suffer irreparable harm and denying him access to justice.
7. The second application is a Notice of Motion dated 2nd August 2024 filed in HCCOMMA No. E200 of 2024 by the appellant pursuant to the provisions of Articles 47, 159(2)(d) & (e), 165(3) (e) & 259 of the Constitution of Kenya, 2010, Sections 1A, 1B, 3 & 3A of the Civil Procedure Act, Order 42 Rule 6 of the Civil Procedure Rules, 2010, Section 10 of the High Court (Organization and Administration) Act, 2015, Section 34(4)(d) & 38 of the Small Claims Court Act and all enabling provisions of the law.
8. The appellant prays for the setting aside the orders issued by Hon. B. A. Akinyi on 31st July 2024 in Milimani Small Claims Court SCCCOMM No. E2215 of 2024, which dismissed the Preliminary Objection filled therein, and directed the hearing of the suit. He also prays for the setting aside of the order requiring the appellant to provide the logbook for motor vehicle registration No. KCM 067W Volvo S40 by 1st August 2024. The appellant also prays for stay of proceedings in SCCCOMM No. E2215 of 2024 pending the hearing and determination of this appeal.
9. The application is premised on the grounds on the face of the Motion, and it is supported by affidavits sworn 2nd August 2024 & 2nd October 2024 by Alex Kimtai Cherongis an Advocate of the High Court of Kenya and learned Counsel for the appellant. In opposition to the application, the respondent filed a replying affidavit sworn on 19th August 2024 by Laura Bagwasi, the respondent herein.
10. On perusal of the aforesaid affidavits, I note that they contain the same averments as those filed in support and opposition of the application in HCCOMMA No. E199 of 2024. I will therefore not reproduce them as their details have already been captured in the preceding paragraphs.
11. The two applications were canvassed by way of written submissions. In HCCOMMA No. E199 of 2024, the appellant’s submissions were filed by the law firm of Sang Cherongis Law Advocates LLP on 2nd October 2024, while the respondent’s submissions were filed on 24th November 2024 by the law firm of ROM Law Advocates.
12. Mr. Cherongis, learned Counsel for the appellant challenged the jurisdiction of the Small Claims Court to determine the dispute between the parties herein and argued that the Trial Court erred in law and fact by handling matters related to marriage, dowry, and matrimonial property, which fall outside its jurisdiction under the Magistrates Court Act, Matrimonial Property Act, and Small Claims Court Act. He relied on the Supreme Court case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others 2014 [eKLR] and submitted that the appellant’s appeal is arguable and not frivolous. Mr. Cherongis asserted that in the event that orders for stay of proceedings are not granted, execution may proceed, and the Trial Court may continue hearing the case despite lacking jurisdiction, thus rendering this appeal nugatory. He stated that the appellant will be forced to submit to an improper forum and suffer irreparable social, psychological, and financial harm.
13. It was submitted by Counsel that the affidavit in support of the instant application merely elaborate on the Memorandum of Appeal and include annexures such as the Small Claims Court’s ruling, Memorandum of Appeal, and relevant affidavits, which are non-contentious and accessible via the e-filing system. He further submitted that the said affidavit complies with Order 19 Rule 3(1) of the Civil Procedure Rules, 2010 which allows statements of information and belief in interlocutory proceedings, and Rule 8 of the Advocates (Practice) Rules that permits Advocates to swear affidavits on formal or non-contentious matters. Mr. Cherongis referred to the Court of Appeal decisions in Hakika Transporters Services Ltd v Albert Chulah Wamimittaire [2016] eKLR, and Ibrahim & another v Muhsin & another [2024] KECA 862 (KLR). He asserted that the affidavits in support of the instant applications are properly filed and valid.
14. Ms Maina, learned Counsel for the respondent referred to the provisions of Order 19 Rule 3(1) of the Civil Procedure Rules, 2010 and Rule 9 of the Advocates (Practice) Rules and submitted that it is a general rule that Advocates should not swear affidavits on behalf of their clients, as they would be reporting hearsay rather than facts within their personal knowledge. She further submitted that the supporting affidavits in support of the instant applications contain contentious issues that should be addressed by the appellant. She relied on the case of Miriam Cherogony v African Rural Agricultural Credit Association [2021] eKLR, and stated that appellant’s Counsel has improperly positioned himself as the litigant by addressing the issue of an alleged marriage between the parties, despite not being privy to it. She stated that the said affidavits are improper and should be struck out.
15. Counsel referred to the Court of Appeal case of University of Nairobi v Ricatti Business of East Africa [2020] eKLR, and contended that the appellant’s appeal is not arguable. She argued that the appellant’s Preliminary Objection in the Small Claims Court was improperly raised as it did not present pure points of law but instead required the Trial Court to determine facts, such as whether the property in question was matrimonial property, which would have necessitated the Court to exercise judicial discretion, which is not allowed in a Preliminary Objection. Ms Maina relied on the case of Masisi Mwita v Damaris Wanjiku Njeri [2016] eKLR, and submitted that this Court should balance both parties’ interests and ensure justice is served.
16. She cited decisions in Kenya Wildlife Service v James Mutembei [2019] eKLR and Katangi Developers Limited v Prafula Enterprises Limited & another [2018] eKLR, and argued that the issue before the Small Claims Court is on ownership, whereas this appeal concerns a Preliminary Objection dismissed for failing to meet the criteria of a valid Preliminary Objection. She contended that the orders aimed to preserve the suit property and stay the proceedings before the Trial Court pending the hearing and determination of this appeal, are unnecessary.
17. Additionally, she submitted that execution of the Trial Court’s ruling does not render this appeal nugatory in the event it succeeds. In submitting that disallowing the instant applications will not cause any substantial or irreparable harm to the appellant or render the appeal nugatory, Ms Maina cited the case of Masisi Mwita v Damaris Wanjiku Njeri (supra).
18. In HCCOMMA No. E200 of 2024 the appellant’s submissions were filed by the law firm of Sang Cherongis Law Advocates LLP, on 27th September 2024 and 2nd October 2024, while the respondent’s submissions were filed on 24th November 2024 by the law firm of ROM Law Advocates, LLP. On perusal of the said submissions, I note that just like the affidavits, they contain the same content as those filed in HCCOMMA No. E199 of 2024. I will not therefore reproduce them as their details have already been captured here before.
19. In view of the similarities between HCCOMMA No. E199 of 2024 and HCCOMMA No. E200 of 2024, this Court on 25th November 2024 made an order for consolidation of the two suits with HCCOMMA No. E199 of 2024 being the lead file.
ANALYSIS AND DETERMINATION.
20. I have considered the two applications, the affidavits filed in support thereof, the replying affidavits by the respondent and the written submissions by Counsel for the parties. The issues that arise for determination are –
i) Whether the affidavits filed in support of the applications herein are fatally defective for being sworn by Counsel for the appellant; and
ii) Whether an order for stay of proceedings should issue.
Whether the affidavits filed in support of the applications herein are fatally defective for being sworn by Counsel for the appellant.
21. The respondent argued that the affidavits supporting the applications herein are fatally defective for they were sworn by an Advocate yet they contain contentious issues. The appellant on the other hand maintained that the said affidavits merely elaborate on the Memoranda of Appeal and include non-contentious annexures accessible via the e-filing system. He also submitted that the said affidavits comply with Order 19 Rule 3(1) of the Civil Procedure Rules, 2010 which permits statements of information and belief in interlocutory proceedings, and Rule 8 of the Advocates (Practice) Rules, which allows Advocates to swear affidavits on formal or non-contentious matters.
22. As correctly submitted by Counsel for the respondent, it is a general rule that Advocates should refrain from swearing affidavits on behalf of their clients. However, Rule 8 of the Advocates (Practice) Rules allows Advocates to swear affidavits on non-contentious issues. It states that -
No advocate may appear as such before any court or tribunal in any matter in which he has reason to believe that he may be required as a witness to give evidence, whether verbally or by declaration or affidavit; and if, while appearing in any matter, it becomes apparent that he will be required as a witness to give evidence whether verbally or by declaration or affidavit, he shall not continue to appear:
Provided that this rule does not prevent an advocate from giving evidence whether verbally or by declaration or affidavit on formal or non-contentious matter of fact in any matter in which he acts or appears. (Emphasis added).
23. Order 19 Rule 3(1) of the Civil Procedure Rules, 2010 provides as follows-
Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove: provided that in interlocutory proceedings, or by leave of the court, an affidavit may contain statements of information and belief showing the sources and grounds thereof.
24. In Kamlesh Mansukhlal Damji Pattni v Nasir Ibrahim Ali & 2 others [2005] eKLR, quoted with authority by the Court of Appeal in Mutabari (Suing for and on behalf of Humility Ministries) & 10 others v Ole Koruta [2022] KECA 978 (KLR), the Court held that -
Muite is of course right in his concession that advocates should not swear affidavits on behalf of their clients when their clients are readily available to do so. It accords with the spirit of the best evidence rule and, in view of the provisions of order XVIII r 2, with common sense. It would otherwise be embarrassing to apply those provisions to an advocate who may have to relinquish his role as one, to become a witness. There is otherwise no express prohibition against an advocate who of his own knowledge can prove some facts, to state them in an affidavit on behalf of his client. So too an advocate who cannot readily find his client but has information the sources of which he can disclose and state the grounds for believing the information.
25. In light of the provisions of the law that I have reproduced in this ruling, and the above decision, I find that nothing prohibits an Advocate from swearing an affidavit on behalf of his/her client, as long as he/she can prove the facts deposed to.
26. On perusal of the affidavits filed in support of the applications herein, I note that the information contained therein in respect to the dispute before the Trial Court is derived from sources disclosed by Counsel for the appellant. Such sources include a replying affidavit sworn by the respondent annexed to the affidavits herein as annexure No. AKC5. I as such agree with the appellant that the said affidavits elaborate on the Memoranda of Appeal and contain information derived from non-contentious annexures accessible via the e-filing system.
27. In the end, it is my finding that the affidavits filed in support of the applications herein do not offend the provisions of Order 19 Rule 3(1) of the Civil Procedure Rules, 2010 and Rule 8 of the Advocates (Practice) Rules, thus they are not fatally defective.
Whether an order for stay of proceedings should issue.
28. Stay of proceedings is provided for under Order 42 Rule 6(1) of the Civil Procedure Rules, 2010 which stipulates that –
No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.
29. An excerpt from Halsbury’s Laws of England 4th Edition Volume 37, at pages 330 to 332, states as follows in respect to stay of proceedings -
The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the courts general practice is that a stay of proceedings should not be imposed unless the proceedings beyond all reasonable doubt ought not to be allowed to continue.
30. The principles to be considered by a Court when dealing with an application for stay of proceedings were considered in Re Global Tours & Travel Ltd, High Court Winding up Cause No. 43 of 2000, where Ringera J., held as follows -
As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice...the sole question is whether it is in the interest of justice to order for stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the Court should essentially weigh the pros and cons of granting or not granting the order. And, in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously.
31. Further, in the case of William Odhiambo Ramogi & 2 others v the Honourable Attorney General & 3 others [2019] eKLR, the High Court comprising a five Judge bench laid out the following principles to be considered when dealing with an application for stay of proceedings pending appeal -
a. First, there must be an appeal pending before the higher Court;
b. Second, where such stay is sought in the Court hearing the case as opposed to the higher Court to which the Appeal has been filed and there is no express provision of the law allowing for such an application, the Applicant should explain why the stay has not been sought in the higher Court. This is because, due to the potential of an application for stay of proceedings to inordinately delay trial, there is a policy in favour of applications for stay being handled in the Court to which an appeal is preferred because such a Court is familiar with its docket and is therefore in a position to calibrate any order it gives accordingly;
c. Third, the Applicant must demonstrate that the appeal raises substantial questions to be determined or is otherwise arguable;
d. Fourth, the Applicant must demonstrate that the Appeal would be rendered nugatory if the stay of proceedings is not granted;
e. Fifth, the Applicant must demonstrate that there are exceptional circumstances which make the stay of proceedings warranted as opposed to having the case concluded and all arising grievances taken up on a single appeal; and
f. Sixth, the Applicant must demonstrate that the application for stay was filed expeditiously and without delay.
32. It is not in contest that there are pending appeals in this Court against the rulings delivered by the Small Claims Court on 31st July 2024 in Milimani SCCCOMM No. E2214 of 2024 and Milimani SCCCOMM No. E2215 of 2024. I now have to establish whether the said appeals are arguable in order to exercise my discretion in favour of the appellant.
33. On perusal of the Memoranda of Appeal both dated 2nd August 2024, it is evident that the appellant claims that the Honourable Adjudicator erred in dismissing the appellant’s Notices of Preliminary Objection which challenged her jurisdiction to hear and determine the disputes between the parties herein. It is also evident that the said appeals are heavily grounded on the fact that the Trial Court erred in law and fact by concluding that she has the requisite jurisdiction to hear and determine disputes related to matrimonial property and marriage, contrary to the provisions of the Magistrate’s Court Act, Matrimonial Property Act, and the Small Claims Court Act. On perusal of the rulings that form the subject of this appeal, I note that the Notices of Preliminary Objection in question were dismissed on grounds that they were not proper Preliminary Objection, as in order for the Court to determine the nature of the relationship between the parties herein, it would have to ascertain facts.
34. This in my view does not take away from the fact that the appellant challenges the Trial Court’s jurisdiction to hear and determine the disputes between the parties herein. It is trite law that jurisdiction is a very pertinent question of law and if a Court determines that it has no jurisdiction it has no option but to down its tools, this was the holding by the Court in the case of the Owners of the Motor Vessel “Lillian S v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR). In the premise, and in view of the fact that this Court will have to determine whether or not the appellant’s Notices of Preliminary Objection filed before the Trial Court were merited, I am persuaded that the appeal herein is arguable
35. The appellant’s Counsel argued that in the event the orders sought herein are not granted, this appeal will be rendered nugatory as the hearing before the Trial Court will proceed, and the appellant will be forced to submit himself to a Court with no jurisdiction. The respondent’s Counsel on the other hand submitted that the appellant’s Notices of Preliminary Objection were dismissed for failing to be compliant with the set principles of what constitutes a Preliminary Objection. She also stated that the Trial Court orders were meant to preserve the suit property pending the hearing and determination of the suit. The respondent contended that this appeal will not be rendered nugatory in the event that the applications herein are not allowed.
36. The word “nugatory” was defined by the Court of Appeal in the case of John King’ori Kioni v Sidian Bank & another [2021] KECA 820 (KLR) as follows-
For an appeal to be rendered nugatory means that its success is futile, worthless or a mere pyrrhic victory because what has happened in the intervening period cannot be reversed or adequately compensated by award of damages.
37. Having analyzed the applications before me, it is my finding that in the event that an order for stay of proceedings is not granted, the hearings before the Trial Court will proceed, and the appellant will be forced to submit to the jurisdiction of the Trial Court without being certain of whether or not the said Court has the requisite jurisdiction to determine the disputes between the parties herein. Noting that disputes filed at the Small Claims Court ought to be determined within sixty (60) days of filing of the claim, it is clear that by the time these appeals are heard and determined, the hearing of the suits before the Trial Court will have been concluded, judgment delivered and execution will have ensued.
38. In view of the foregoing, and the fact that in determining the appeals this Court will have to determine whether the appellant’s Notices of Preliminary Objection filed before the Trial Court challenging the Trial Court’s jurisdiction to hear and determine the disputes between the parties herein are merited, I am persuaded that if an order for stay of proceedings is not granted, the appeals stand to be rendered nugatory.
39. On the question of whether there exists exceptional circumstances to warrant the appellant to be granted the orders sought, I am alive to the fact that this appeal arises from decisions of the Small Claims Court which operates within the confines of the Small Claims Courts Act. Disputes filed at the Small Claims Court ought to be determined within sixty (60) days of filing of the claim pursuant to the provisions of Section 34(1) of the Small Claims Court Act which states that-
All proceedings before the Court on any particular day so far as is practicable shall be heard and determined on the same day or on a day to day basis until final determination of the matter which shall be within sixty days from the date of filing the claim.
40. In view of the foregoing, this Court finds that there exists exceptional circumstances to warrant the appellant to be granted the orders sought since by the time the appeals are heard and determined, the hearing of the suits before the Trial Court will have been concluded, judgment delivered and execution will have been done. I also note that the applications herein were filed barely two days after the delivery of the Trial Court’s rulings and as such, they were filed timeously.
41. In the end, I find that the appellant has made out a case to warrant being granted an order for stay of proceedings pending appeal.
42. The upshot is that the two applications are merited. They are hereby allowed in the following terms –
i) An order for stay of proceedings in Milimani Small Claims Court SCCCOMM No. E2214 of 2024 and Milimani Small Claims Court SCCCOMM No. E2215 of 2024 is hereby granted pending the hearing and determination of the appeals in HCCOMMA No. E199 of 2024 & No. E200 of 2024; and
ii) Costs shall abide the outcome of the appeal.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 14th day of February 2025. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:
Mr. Cherongis for the appellant/applicant
Ms Maina for the respondent
Ms B. Wokabi - Court Assistant.
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL & TAX DIVISION
HCCOMMA NO. E199 OF 2024
(CONSOLIDATED WITH HCCOMMA NO. E200 OF 2024)
FRIDAY KINARA KING’OINA…...……...…….…..APPELLANT/APPLICANT
-VERSUS-
LAURA BAGWASI………………….…....……………………….RESPONDENT
-AND-
JONIZ WHEELS ENTERPRISES LIMITED……….…….INTERESTED PARTY
RULING
1. This ruling in respect to two applications. The first application is a Notice of Motion dated 2nd August 2024 filed in HCCOMMA No. E199 of 2024 by the appellant pursuant to the provisions of Articles 47, 159(2)(d) & (e), 165(3)(e) & 259 of the Constitution of Kenya, 2010, Sections 1A, 1B, 3 & 3A of the Civil Procedure Act, Order 42 Rule 6 of the Civil Procedure Rules, 2010, Section 10 of the High Court (Organization and Administration) Act, 2015, Section 34(4)(d) & 38 of the Small Claims Court Act and all enabling provisions of the law.
2. The appellant prays for the setting aside the orders made by Hon. B. A. Akinyi on 31st July 2024 in Milimani Small Claims Court SCCCOMM No. E2214 of 2024, which dismissed the Preliminary Objection filed therein, and directed the hearing of the suit. The appellant also seeks the setting aside of the order requiring him to provide the logbook for motor vehicle registration No. KCM 067W Volvo S40 in Court by 1st August 2024. He also prays for stay of proceedings in SCCCOMM No. E2214 of 2024 pending the hearing and determination of this appeal.
3. The application is premised on the grounds on the face of the Motion, and it is supported by an affidavit sworn on the same day by Alex Kimtai Cherongis an Advocate of the High Court of Kenya and learned Counsel for the appellant. He averred that the Hon. Adjudicator disregarded submissions, misapplied the law, and made a plainly wrong ruling on her jurisdiction. He further averred that the appellant herein has filed a Memorandum of Appeal, demonstrating that the appeal is arguable with a high probability of success.
4. Mr. Cherongis contended that the suit before the Small Claims Court involves matrimonial property and marriage disputes, which the Small Claims Court lacks jurisdiction to determine under the Magistrates Court Act, Matrimonial Property Act, and Small Claims Court Act. He asserted that the respondent admitted cohabitation, suggesting a presumption of marriage and urged this Court to grant the orders sought so that the parties herein can avoid submitting to a Court with no jurisdiction.
5. In opposition to the application, the respondent herein filed a replying affidavit sworn on 19th August 2024 by herself. She contended that the instant application and the affidavit in support thereof are fatally defective, as they were sworn by an Advocate. She averred that the Trial Court dismissed the appellant’s Preliminary Objection on the basis that it did not meet the requisite threshold, which must raise pure points of law. She asserted that this appeal lacks merits, as it solely challenges the dismissal of the Preliminary Objection. Ms Bagwasi stated that the instant application is a deliberate attempt to delay the determination of the main suit, thereby denying her the right to property enshrined under Article 40 of the Constitution of Kenya.
6. In a rejoinder, the appellant filed a further affidavit sworn on 2nd October 2024 by Alex Kimtai Cherongis an Advocate of the High Court of Kenya and learned Counsel for the appellant. He averred that the affidavit in support of the instant application contain non-contentious evidence as the averments were sourced from the Court's e-filing system, and that his affidavit complies with Order 19 Rule 3(1) of the Civil Procedure Rules, allowing statements of information and belief in interlocutory proceedings, and Rule 8 of the Advocates (Practice) Rules which permits Advocates to swear affidavits on formal or non-contentious matters. He asserted that if the orders of 31st July 2024 are executed, this appeal will be rendered moot, causing the appellant to suffer irreparable harm and denying him access to justice.
7. The second application is a Notice of Motion dated 2nd August 2024 filed in HCCOMMA No. E200 of 2024 by the appellant pursuant to the provisions of Articles 47, 159(2)(d) & (e), 165(3) (e) & 259 of the Constitution of Kenya, 2010, Sections 1A, 1B, 3 & 3A of the Civil Procedure Act, Order 42 Rule 6 of the Civil Procedure Rules, 2010, Section 10 of the High Court (Organization and Administration) Act, 2015, Section 34(4)(d) & 38 of the Small Claims Court Act and all enabling provisions of the law.
8. The appellant prays for the setting aside the orders issued by Hon. B. A. Akinyi on 31st July 2024 in Milimani Small Claims Court SCCCOMM No. E2215 of 2024, which dismissed the Preliminary Objection filled therein, and directed the hearing of the suit. He also prays for the setting aside of the order requiring the appellant to provide the logbook for motor vehicle registration No. KCM 067W Volvo S40 by 1st August 2024. The appellant also prays for stay of proceedings in SCCCOMM No. E2215 of 2024 pending the hearing and determination of this appeal.
9. The application is premised on the grounds on the face of the Motion, and it is supported by affidavits sworn 2nd August 2024 & 2nd October 2024 by Alex Kimtai Cherongis an Advocate of the High Court of Kenya and learned Counsel for the appellant. In opposition to the application, the respondent filed a replying affidavit sworn on 19th August 2024 by Laura Bagwasi, the respondent herein.
10. On perusal of the aforesaid affidavits, I note that they contain the same averments as those filed in support and opposition of the application in HCCOMMA No. E199 of 2024. I will therefore not reproduce them as their details have already been captured in the preceding paragraphs.
11. The two applications were canvassed by way of written submissions. In HCCOMMA No. E199 of 2024, the appellant’s submissions were filed by the law firm of Sang Cherongis Law Advocates LLP on 2nd October 2024, while the respondent’s submissions were filed on 24th November 2024 by the law firm of ROM Law Advocates.
12. Mr. Cherongis, learned Counsel for the appellant challenged the jurisdiction of the Small Claims Court to determine the dispute between the parties herein and argued that the Trial Court erred in law and fact by handling matters related to marriage, dowry, and matrimonial property, which fall outside its jurisdiction under the Magistrates Court Act, Matrimonial Property Act, and Small Claims Court Act. He relied on the Supreme Court case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others 2014 [eKLR] and submitted that the appellant’s appeal is arguable and not frivolous. Mr. Cherongis asserted that in the event that orders for stay of proceedings are not granted, execution may proceed, and the Trial Court may continue hearing the case despite lacking jurisdiction, thus rendering this appeal nugatory. He stated that the appellant will be forced to submit to an improper forum and suffer irreparable social, psychological, and financial harm.
13. It was submitted by Counsel that the affidavit in support of the instant application merely elaborate on the Memorandum of Appeal and include annexures such as the Small Claims Court’s ruling, Memorandum of Appeal, and relevant affidavits, which are non-contentious and accessible via the e-filing system. He further submitted that the said affidavit complies with Order 19 Rule 3(1) of the Civil Procedure Rules, 2010 which allows statements of information and belief in interlocutory proceedings, and Rule 8 of the Advocates (Practice) Rules that permits Advocates to swear affidavits on formal or non-contentious matters. Mr. Cherongis referred to the Court of Appeal decisions in Hakika Transporters Services Ltd v Albert Chulah Wamimittaire [2016] eKLR, and Ibrahim & another v Muhsin & another [2024] KECA 862 (KLR). He asserted that the affidavits in support of the instant applications are properly filed and valid.
14. Ms Maina, learned Counsel for the respondent referred to the provisions of Order 19 Rule 3(1) of the Civil Procedure Rules, 2010 and Rule 9 of the Advocates (Practice) Rules and submitted that it is a general rule that Advocates should not swear affidavits on behalf of their clients, as they would be reporting hearsay rather than facts within their personal knowledge. She further submitted that the supporting affidavits in support of the instant applications contain contentious issues that should be addressed by the appellant. She relied on the case of Miriam Cherogony v African Rural Agricultural Credit Association [2021] eKLR, and stated that appellant’s Counsel has improperly positioned himself as the litigant by addressing the issue of an alleged marriage between the parties, despite not being privy to it. She stated that the said affidavits are improper and should be struck out.
15. Counsel referred to the Court of Appeal case of University of Nairobi v Ricatti Business of East Africa [2020] eKLR, and contended that the appellant’s appeal is not arguable. She argued that the appellant’s Preliminary Objection in the Small Claims Court was improperly raised as it did not present pure points of law but instead required the Trial Court to determine facts, such as whether the property in question was matrimonial property, which would have necessitated the Court to exercise judicial discretion, which is not allowed in a Preliminary Objection. Ms Maina relied on the case of Masisi Mwita v Damaris Wanjiku Njeri [2016] eKLR, and submitted that this Court should balance both parties’ interests and ensure justice is served.
16. She cited decisions in Kenya Wildlife Service v James Mutembei [2019] eKLR and Katangi Developers Limited v Prafula Enterprises Limited & another [2018] eKLR, and argued that the issue before the Small Claims Court is on ownership, whereas this appeal concerns a Preliminary Objection dismissed for failing to meet the criteria of a valid Preliminary Objection. She contended that the orders aimed to preserve the suit property and stay the proceedings before the Trial Court pending the hearing and determination of this appeal, are unnecessary.
17. Additionally, she submitted that execution of the Trial Court’s ruling does not render this appeal nugatory in the event it succeeds. In submitting that disallowing the instant applications will not cause any substantial or irreparable harm to the appellant or render the appeal nugatory, Ms Maina cited the case of Masisi Mwita v Damaris Wanjiku Njeri (supra).
18. In HCCOMMA No. E200 of 2024 the appellant’s submissions were filed by the law firm of Sang Cherongis Law Advocates LLP, on 27th September 2024 and 2nd October 2024, while the respondent’s submissions were filed on 24th November 2024 by the law firm of ROM Law Advocates, LLP. On perusal of the said submissions, I note that just like the affidavits, they contain the same content as those filed in HCCOMMA No. E199 of 2024. I will not therefore reproduce them as their details have already been captured here before.
19. In view of the similarities between HCCOMMA No. E199 of 2024 and HCCOMMA No. E200 of 2024, this Court on 25th November 2024 made an order for consolidation of the two suits with HCCOMMA No. E199 of 2024 being the lead file.
ANALYSIS AND DETERMINATION.
20. I have considered the two applications, the affidavits filed in support thereof, the replying affidavits by the respondent and the written submissions by Counsel for the parties. The issues that arise for determination are –
i) Whether the affidavits filed in support of the applications herein are fatally defective for being sworn by Counsel for the appellant; and
ii) Whether an order for stay of proceedings should issue.
Whether the affidavits filed in support of the applications herein are fatally defective for being sworn by Counsel for the appellant.
21. The respondent argued that the affidavits supporting the applications herein are fatally defective for they were sworn by an Advocate yet they contain contentious issues. The appellant on the other hand maintained that the said affidavits merely elaborate on the Memoranda of Appeal and include non-contentious annexures accessible via the e-filing system. He also submitted that the said affidavits comply with Order 19 Rule 3(1) of the Civil Procedure Rules, 2010 which permits statements of information and belief in interlocutory proceedings, and Rule 8 of the Advocates (Practice) Rules, which allows Advocates to swear affidavits on formal or non-contentious matters.
22. As correctly submitted by Counsel for the respondent, it is a general rule that Advocates should refrain from swearing affidavits on behalf of their clients. However, Rule 8 of the Advocates (Practice) Rules allows Advocates to swear affidavits on non-contentious issues. It states that -
No advocate may appear as such before any court or tribunal in any matter in which he has reason to believe that he may be required as a witness to give evidence, whether verbally or by declaration or affidavit; and if, while appearing in any matter, it becomes apparent that he will be required as a witness to give evidence whether verbally or by declaration or affidavit, he shall not continue to appear:
Provided that this rule does not prevent an advocate from giving evidence whether verbally or by declaration or affidavit on formal or non-contentious matter of fact in any matter in which he acts or appears. (Emphasis added).
23. Order 19 Rule 3(1) of the Civil Procedure Rules, 2010 provides as follows-
Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove: provided that in interlocutory proceedings, or by leave of the court, an affidavit may contain statements of information and belief showing the sources and grounds thereof.
24. In Kamlesh Mansukhlal Damji Pattni v Nasir Ibrahim Ali & 2 others [2005] eKLR, quoted with authority by the Court of Appeal in Mutabari (Suing for and on behalf of Humility Ministries) & 10 others v Ole Koruta [2022] KECA 978 (KLR), the Court held that -
Muite is of course right in his concession that advocates should not swear affidavits on behalf of their clients when their clients are readily available to do so. It accords with the spirit of the best evidence rule and, in view of the provisions of order XVIII r 2, with common sense. It would otherwise be embarrassing to apply those provisions to an advocate who may have to relinquish his role as one, to become a witness. There is otherwise no express prohibition against an advocate who of his own knowledge can prove some facts, to state them in an affidavit on behalf of his client. So too an advocate who cannot readily find his client but has information the sources of which he can disclose and state the grounds for believing the information.
25. In light of the provisions of the law that I have reproduced in this ruling, and the above decision, I find that nothing prohibits an Advocate from swearing an affidavit on behalf of his/her client, as long as he/she can prove the facts deposed to.
26. On perusal of the affidavits filed in support of the applications herein, I note that the information contained therein in respect to the dispute before the Trial Court is derived from sources disclosed by Counsel for the appellant. Such sources include a replying affidavit sworn by the respondent annexed to the affidavits herein as annexure No. AKC5. I as such agree with the appellant that the said affidavits elaborate on the Memoranda of Appeal and contain information derived from non-contentious annexures accessible via the e-filing system.
27. In the end, it is my finding that the affidavits filed in support of the applications herein do not offend the provisions of Order 19 Rule 3(1) of the Civil Procedure Rules, 2010 and Rule 8 of the Advocates (Practice) Rules, thus they are not fatally defective.
Whether an order for stay of proceedings should issue.
28. Stay of proceedings is provided for under Order 42 Rule 6(1) of the Civil Procedure Rules, 2010 which stipulates that –
No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.
29. An excerpt from Halsbury’s Laws of England 4th Edition Volume 37, at pages 330 to 332, states as follows in respect to stay of proceedings -
The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the courts general practice is that a stay of proceedings should not be imposed unless the proceedings beyond all reasonable doubt ought not to be allowed to continue.
30. The principles to be considered by a Court when dealing with an application for stay of proceedings were considered in Re Global Tours & Travel Ltd, High Court Winding up Cause No. 43 of 2000, where Ringera J., held as follows -
As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice...the sole question is whether it is in the interest of justice to order for stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the Court should essentially weigh the pros and cons of granting or not granting the order. And, in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously.
31. Further, in the case of William Odhiambo Ramogi & 2 others v the Honourable Attorney General & 3 others [2019] eKLR, the High Court comprising a five Judge bench laid out the following principles to be considered when dealing with an application for stay of proceedings pending appeal -
a. First, there must be an appeal pending before the higher Court;
b. Second, where such stay is sought in the Court hearing the case as opposed to the higher Court to which the Appeal has been filed and there is no express provision of the law allowing for such an application, the Applicant should explain why the stay has not been sought in the higher Court. This is because, due to the potential of an application for stay of proceedings to inordinately delay trial, there is a policy in favour of applications for stay being handled in the Court to which an appeal is preferred because such a Court is familiar with its docket and is therefore in a position to calibrate any order it gives accordingly;
c. Third, the Applicant must demonstrate that the appeal raises substantial questions to be determined or is otherwise arguable;
d. Fourth, the Applicant must demonstrate that the Appeal would be rendered nugatory if the stay of proceedings is not granted;
e. Fifth, the Applicant must demonstrate that there are exceptional circumstances which make the stay of proceedings warranted as opposed to having the case concluded and all arising grievances taken up on a single appeal; and
f. Sixth, the Applicant must demonstrate that the application for stay was filed expeditiously and without delay.
32. It is not in contest that there are pending appeals in this Court against the rulings delivered by the Small Claims Court on 31st July 2024 in Milimani SCCCOMM No. E2214 of 2024 and Milimani SCCCOMM No. E2215 of 2024. I now have to establish whether the said appeals are arguable in order to exercise my discretion in favour of the appellant.
33. On perusal of the Memoranda of Appeal both dated 2nd August 2024, it is evident that the appellant claims that the Honourable Adjudicator erred in dismissing the appellant’s Notices of Preliminary Objection which challenged her jurisdiction to hear and determine the disputes between the parties herein. It is also evident that the said appeals are heavily grounded on the fact that the Trial Court erred in law and fact by concluding that she has the requisite jurisdiction to hear and determine disputes related to matrimonial property and marriage, contrary to the provisions of the Magistrate’s Court Act, Matrimonial Property Act, and the Small Claims Court Act. On perusal of the rulings that form the subject of this appeal, I note that the Notices of Preliminary Objection in question were dismissed on grounds that they were not proper Preliminary Objection, as in order for the Court to determine the nature of the relationship between the parties herein, it would have to ascertain facts.
34. This in my view does not take away from the fact that the appellant challenges the Trial Court’s jurisdiction to hear and determine the disputes between the parties herein. It is trite law that jurisdiction is a very pertinent question of law and if a Court determines that it has no jurisdiction it has no option but to down its tools, this was the holding by the Court in the case of the Owners of the Motor Vessel “Lillian S v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR). In the premise, and in view of the fact that this Court will have to determine whether or not the appellant’s Notices of Preliminary Objection filed before the Trial Court were merited, I am persuaded that the appeal herein is arguable
35. The appellant’s Counsel argued that in the event the orders sought herein are not granted, this appeal will be rendered nugatory as the hearing before the Trial Court will proceed, and the appellant will be forced to submit himself to a Court with no jurisdiction. The respondent’s Counsel on the other hand submitted that the appellant’s Notices of Preliminary Objection were dismissed for failing to be compliant with the set principles of what constitutes a Preliminary Objection. She also stated that the Trial Court orders were meant to preserve the suit property pending the hearing and determination of the suit. The respondent contended that this appeal will not be rendered nugatory in the event that the applications herein are not allowed.
36. The word “nugatory” was defined by the Court of Appeal in the case of John King’ori Kioni v Sidian Bank & another [2021] KECA 820 (KLR) as follows-
For an appeal to be rendered nugatory means that its success is futile, worthless or a mere pyrrhic victory because what has happened in the intervening period cannot be reversed or adequately compensated by award of damages.
37. Having analyzed the applications before me, it is my finding that in the event that an order for stay of proceedings is not granted, the hearings before the Trial Court will proceed, and the appellant will be forced to submit to the jurisdiction of the Trial Court without being certain of whether or not the said Court has the requisite jurisdiction to determine the disputes between the parties herein. Noting that disputes filed at the Small Claims Court ought to be determined within sixty (60) days of filing of the claim, it is clear that by the time these appeals are heard and determined, the hearing of the suits before the Trial Court will have been concluded, judgment delivered and execution will have ensued.
38. In view of the foregoing, and the fact that in determining the appeals this Court will have to determine whether the appellant’s Notices of Preliminary Objection filed before the Trial Court challenging the Trial Court’s jurisdiction to hear and determine the disputes between the parties herein are merited, I am persuaded that if an order for stay of proceedings is not granted, the appeals stand to be rendered nugatory.
39. On the question of whether there exists exceptional circumstances to warrant the appellant to be granted the orders sought, I am alive to the fact that this appeal arises from decisions of the Small Claims Court which operates within the confines of the Small Claims Courts Act. Disputes filed at the Small Claims Court ought to be determined within sixty (60) days of filing of the claim pursuant to the provisions of Section 34(1) of the Small Claims Court Act which states that-
All proceedings before the Court on any particular day so far as is practicable shall be heard and determined on the same day or on a day to day basis until final determination of the matter which shall be within sixty days from the date of filing the claim.
40. In view of the foregoing, this Court finds that there exists exceptional circumstances to warrant the appellant to be granted the orders sought since by the time the appeals are heard and determined, the hearing of the suits before the Trial Court will have been concluded, judgment delivered and execution will have been done. I also note that the applications herein were filed barely two days after the delivery of the Trial Court’s rulings and as such, they were filed timeously.
41. In the end, I find that the appellant has made out a case to warrant being granted an order for stay of proceedings pending appeal.
42. The upshot is that the two applications are merited. They are hereby allowed in the following terms –
i) An order for stay of proceedings in Milimani Small Claims Court SCCCOMM No. E2214 of 2024 and Milimani Small Claims Court SCCCOMM No. E2215 of 2024 is hereby granted pending the hearing and determination of the appeals in HCCOMMA No. E199 of 2024 & No. E200 of 2024; and
ii) Costs shall abide the outcome of the appeal.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 14th day of February 2025. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:
Mr. Cherongis for the appellant/applicant
Ms Maina for the respondent
Ms B. Wokabi - Court Assistant.