GA INSURANCE LIMITED VS FRIDAH MORAA ONWONG'A

1. This is a Judgment arising from the Ruling of Hon. Gatambia Ndungu given on 31/10/2023 in Mombasa SCCC No. E 118 of 2023. The Appellant raised   5 concise grounds. These are:-
(a) THAT the leaned Trial magistrate/Adjudicator erred in law by erroneously entertaining an application for review and thereupon awarding cost to the Respondent in spite of the fact that the court was divested of jurisdiction hence not clothed with the requisite jurisdiction to adjudicate a claim struck out for want of jurisdiction.

(b) THAT the learned trial Magistrate/Adjudicator erred in law and fact by completely misspending the requisite conditions precedent for a declaratory order to issue.


(c)  THAT the learned Trial magistrate/adjudicator erred in failing to appreciate and correctly apply the requisite principles in application for refinement of soul and entry of judgment or admission.
(d)  THAT this learned Trial Magistrate/Adjudicator erred in law by adjudicating outside jurisdiction and failing to appreciate the functus officio doctrine.
(e)  THAT the learned magistrate erred in law issuing orders that had not ben prayed for in the application.

2. The question in the Court’s mind is whether the adjudicator can correct his own decision on a point of Law. Whether he has or has no jurisdiction.

3. By striking out the claim in April, 2023, the Court became functus official. The application dated 12/9/2023 was filed 4 months after the suit was struck out. There appears to be a misunderstanding that my decision in Biosystems Consultants v Nyali Links Arcade (Civil Appeal E185 of 2023) [2023] KEHC 21068 (KLR) (31 July 2023) (Ruling)was a carte blance to go back to bad old practice.  It was for progressive realisation of conclusion of matters. I had stated as doth:
“My take is that we look at the provisions purposively. The timelines did not create proprietary rights. In the cases referred to earlier, there are consequences given for non-compliance.”

4. I did not authorize or direct that dead suits can be resurrected long after parties have dealt with their issues elsewhere.

5. The second aspect is that costs are awardable to a successful party under Section 33 of the Small Claims Act, which states as doth: -
“33. Cost of proceedings (1)


The Court may award costs to the successful party in any proceedings. (2) In any other case parties shall bear their respective costs of the proceedings.
(3) Without prejudice to subsections (1) and (2), the Court may award to successful party disbursements incurred on account of the proceedings. (4) Except as provided in subsection (2), costs other than disbursements, shall not be granted to or awarded against any party to any proceedings before a Court.”

6. By settling the claim in E201 of 2022, the sub-stratum of SCC 118/2022 was lost. There was no successful party in the said case, SCC 118 OF 2022. Even if for argument purposes, the court had a right to revive a suit, it cannot do so only to award costs. A successful party must have a decree other than a certificate of costs. A decree includes dismissal of a suit. Once a suit is dismissed, costs can only be awarded to the respondent.

7. The interpretation of Section 41 of the Small Claims Court Act to allow review of errors of law is anathema to good conscience and established procedure under Section 38(1) where only points for law are appealable to the High Court, whose decision is final. Section 38 of the Small Claims Court Act provides for appeals as doth: -
“38. Appeals
(1) A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law.
(2) An appeal from any decision or order referred to in subsection (1) shall be final.

8. Section 41 does not allow appeals to the small claims court. The adjudication is allowed to review only on the grounds that: -
“Review of orders or awards of the Court
(1) An Adjudicator may, on application by any aggrieved party or on his or her own motion, review any order of the Court on the ground that—
(a) the order was made ex-parte without notice to the applicant;
(b) the claim or order was outside the jurisdiction of the Court;
(c) the order was obtained fraudulently;
(d) there was an error of law on the face of the record; or
(e) new facts previously not before the Court have been discovered by either of the parties.
(2) The application referred to under subsection (1) shall be made within thirty days of the order or award sought to be reviewed or such other period as the court may allow.

9. A Court cannot correct its own error of law. Even where a court has jurisdiction by due laziness, caprice or error declared that it has no jurisdiction then only a higher court can revert to the status quo ante. The issue of jurisdiction was addressed in the case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, justice Nyarangi JA, as he then was stated as doth: -
“With that I return to the issue of jurisdiction and to the words of Section 20 (2) (m) of the 1981 Act. I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Before I part with this aspect of the appeal, I refer to the following passage which will show that what
I have already said is consistent with authority: “By jurisdiction is meant the authority which a court as to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order..”

10.  Whether there is admission or other, arise, once a suit is struck out, then the remedy is to go to the next level available. It is my sincere hope that parties must learn to use the Appellate jurisdiction or forever keep mum.
11. In the case of John Gilbert Ouma v Kenya Ferry Services Limited [2021] eKLR, , the court stated as dofollows: -
“17. The doctrine of functus officio was considered by the Court of Appeal in Telkom Kenya limited v John Ochanda (suing on his own behalf and on behalf of 996 former employees of Telkom Kenya limited) [2014] eKLR, where the court held that -
“Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon.”  
18. The appellant’s Counsel asserted in his written submissions that the Trial Magistrate upon delivering the judgment on 4th October, 2018, became functus officio.
19. It is not contested that on 4th October, 2018 the Trial Court entered judgment in the sum of Kshs. 352,000/= in favor of the appellant as against the respondent. In Telkom Kenya Ltd v John Ochanda (suing on his behalf Telkom Kenya Limited v John Ochanda (Suing On His Own Behalf and on Behalf Of 996 Former Employees of Telkom Kenya Limited) [2014] eKLR , the Court of Appeal (GITHINJI, KARANJA & KIAGE JJ.A) held as follows on the functus officio doctrine-
“Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon--
The general rule that final decision of a court cannot be re-opened derives from the decision of the English Court of Appeal in re-St Nazarire Co, (1879), 12 Ch. D 88.  The basis for it was that the power to rehear was transferred by the Judicature Acts of the appellate division.  The rule applied only after the formal judgment had been drawn up, issued and entered, and was subject to two exceptions. ---”

12. The court in the above case continued as doth: -
20. The Supreme Court of Kenya in the case of Raila Odinga & 2 Others v Independent Electoral & Boundaries Commission & 3 Others [2013] eKLR, cited with approval an excerpt from an article by Daniel Malan Pretorius entitled, “The Origins of the Functus Officio Doctrine, with Special Reference to its Application in Administrative Law” (2005) 122 SALJ 832 which reads: -
“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision making powers may, as a general rule, exercise those powers only once in relation to the same matter...The [principle] is that once such a decision has been given, it is (subject to any right of appeal to superior body or functionary) final and conclusive. Such a decision cannot be reviewed or varied by the decision maker.”
21. Section 99 of the Civil Procedure Act provides exceptions to the doctrine of functus officio in the following terms-
“Clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the court either of its own motion or on the application of any of the parties.”

13. It is important to note that when a finding is made that a cout has no jurisdiction, is does not mean that the claimant has no case. It is that the parties are in forum nullius. They are in a court that cannot decided their case.


14. It is important to note that once an order has been made declining jurisdiction, till it is set aside, one cannot purport to take further proceedings, except for costs which were awarded at the time. If no costs are awarded, till the high court reverses the order, the order of lack of jurisdiction remains.

15. The hierarchical set up of courts are based on wisdom. Once as a lower court expresses itself on jurisdiction, it cannot re-express itself before a higher court infuses its wisdom into it. It is not upon a court to grow wiser, see the light and re-express itself as a lower court. We have delivered judgments, which when we read after 2 months, one asks himself what was I drinking while writing this. The moment does not allow a party to walk back in to the judgment to rejig it.

16. The foregoing is based on the principle of finality. Finality does not mean that the courts are infallible, it gives parties satisfaction to make decision on livability with the decision. The court can be wrong but parties decide to live with the decision. Waking up a dead decision months later causes confusion and mayhem. It causes uncertainty in judicial decisions and causes lack of certainty. In Kamau James Gitutho & 3 others v Multiple Icd (K) Limited & another [2019] eKLR, the court of Appeal stated as doth: -
“Therefore, save for the limited jurisdiction prescribed under Rule 35 of the Court of Appeal Rules, to correct clerical or arithmetical errors, this Court could not re-open or look back into its decision once it was made.
2. The above position was informed by the principle of finality which is hinged on the public interest policy that litigation must come to an end. Bosire, J.A in Jasbir Singh Rai & 3 Others vs Tarlochan Singh Rai & 4 Others [2007] eKLR succinctly described the principle as follows:
“This is a doctrine which enables the courts to say litigation must end at a certain point regardless of what the parties think of the decision which has been handed down.”
Further, the finality principle dealt with the all-too human predilection to keep trying until something gives. See this Court’s decision in William Koross vs Hezekiah Kiptoo Komen & 4 Others [2015] eKLR.”
17.  The high court has also expressed itself in Kennedy Mokua Ongiri v John Nyasende Mosioma & Florence Nyamoita Nyasende [2022] eKLR as hereunder: -
“Whether a claim is allowed or dismissed by consent, default, or after a contested hearing, the need for finality is the same in each instance. The need for finality is why such an Application as was before the Court dated 5/10/2017 must be refused. In determining whether res judicata had arisen, there was no purpose to be served in inquiring into the reasons given or not given in the earlier Application before the Application being rejected. To permit such a broad inquiry effectively requires a trial on the correctness of the earlier Decision, directly undermining the principle of finality and allowing an Appeal on one’s or colleague’s Decisions.
To this end, it is helpful to refer back to the reasons for the principle of finality including that decisions of the court, unless set aside or quashed, must be accepted as incontrovertibly correct. The principle is quite clear and quite strict. The Court reaches this conclusion on an orthodox application of the principle. In the plea of res judicata only the actual record, that the issue has been decided upon, is relevant. Not what material was before the Court. Even if the reasoning given in the earlier Decision was wrong, the matter cannot be re-opened by way of a similar Application.”
18.  Though the above decision dealt with the aspect of res judicata, the principle is the same. Though I note section 41 grants jurisdiction to review an error of law on the face of the record, it cannot apply to conclusions and findings already made. If for example the court is satisfied that service was done under the criminal procedure code, in a civil matter, that is an error of law apparent on the face of the record. However, if the court is satisfied that service was done under order 5 of the civil procedure  rules, whereas small claims courts apply the Small Claims Act, then though it is an error, it is not apparent on the face of the record. It is an appealable error.
19. Finding that the nature of the matter the court has no jurisdiction is a matter of law but not apparent on the face of the record. It is an appealable but not subject to review.
20. The adjudicator fell into a fatal error by assuming jurisdiction that he did not have. He even ignored the 30 days provided under section 41 of the small claims court. Those days are not suggestions.
21. Whether an order was made rightly or wrongly, an adjudicator has no jurisdiction to review a conclusion it has no jurisdiction. The only available remedy is to down its tools and await directions from this court.
22. In this case there is no error of law on the face of the record.  The Small Claims Court has no jurisdiction to review a dead suit to get cost and kill it again. I find that the appeal is merited. I allow the appeal, set aside the order reinstating Mombasa SCCC E118 of 2023 and in lieu thereof, I dismiss the application dated 12/9/2023.

23.  I also order the claim, being SCCC E118 of 2018 stands struck out. Each party will bear their costs both in the court below and in this court. This is informed by the fact that having settled E 207 of 2023, there was nothing to determine.

Determination
24.  The upshot of that the appeal herein is merited and as such I make the following orders: - 
(a) The appeal herein is allowed in its entirety.
(b) The Ruling and order given on 31/10/23 is hereby set aside and in lieu thereof, I substitute with an order that the application dated 12/9/2023 stands dismissed.
(c)  Consequently, the suit SCC E118 of 2023 stands struck out as per the orders of 30/4/2023.
(d)  Each party to bear costs both in this Court and the Court below.
(e) The file is closed

DELIVERED, DATED and SIGNED at MOMBASA on this 21st day of December, 2023. Judgment delivered through Microsoft Teams Online Platform.

In the presence of:
Ms Atieno for the Appellant
Ms Faith Ndwiga for the Respondent
Court Assistant - Brian