RULING
1. This is stranger than fiction. The applicant filed a deceptionally urgent matter, though a certificate of urgency dated 10/52023. The same is a said to be an appeal from Mombasa SCC COMM E151 of 2023. The judgment is indicated to have been delivered on 30/1/2023.
2. The matter arises from the small claims court. The Applicant is said to have been auctioneers. They sue tip top auctioneers. The prayers sought are stay of execution pending determination of the application and thereafter pending the intended appeal. The next set of prayers is for setting aside a proclamation notice and restraining the execution of the decree.
3. The Applicant had filed a similar application dated1/3/2023. The Application for stay is slated for 15/6/2023. They have filed this suit for fear of attachment.
4. The small claims court section 38 provides as doth: -
5. 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.
6. I have had to write a Ruling instead of an order because of the futility of giving a hearing date. There is no appeal filed from the decision of the court below. This court has no jurisdiction to issue stay of execution without an appeal.
7. In the case of the Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, Nyarangi JA, as then he was stated as doth:-
“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 to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given”
8. Where do I get jurisdiction to handle this matter? The Jurisdiction is supposed to flow from Section 38 of the Small Claims Court. There is no appeal pending. There is nothing to be awaited. The application is even a duplex. there is admittedly a similar application, being Misc E052 of 2023. It is pending for hearing.
9. It is not every time execution occurs that a fresh suit is filed. The dispute on stay ought to have been field in the primary file or in the Appeal file. The court does not issue stay orders without any basis.
10. In the case of Congress Rental South Africa v Kenyatta International Convention Centre; Co-operative Bank of Kenya Limited & another (Garnishee) [2019] eKLR, justice J. A. MAKAU, stated as doth: -
“27. In the case of Macharia t/a Macharia & Co. Advocates –vs- East African Standard (Supra) the Honourable Court observed that:
“To be obsessed with the protection of an appellant or intending appellant in total disregard or fliting mention of the so far successful opposite party is to flirt with one party as crocodile tears are shed for the other, contrary to sound principle for the exercise of a judicial discretion. The ordinary principle is that a successful party is entitled to the fruits of his judgement or of any decision of the Court giving him success at any stage. That is trite knowledge and is one of the fundamental procedural values which is acknowledged and normally must be put into effect by the way applications for stay of further proceedings or execution, pending appeal are handled. In the application of that ordinary principle, the court must have its sight firmly fixed on upholding the overriding objective of the rules of procedure for handling civil cases in courts, which is to do justice in accordance with the law and to prevent abuse of the process of the Court.”
11. There being no Appeal, the court has no jurisdiction to entertain this application. In the case of Stephen Omondi Juma v Sprocer Awuor Rabote [2022] eKLR, the court stated as doth: -
“The appellant/applicant, from the exposition above, ought to have sought and obtained leave to appeal from the impugned order of 9/2/2022. Absence of leave to appeal as explained above renders not only the application dated 21/3/2022 impotent, but deprives this Court the jurisdiction to hear and determine this appeal on its merits. It is trite law that jurisdiction is everything, without which, a court of law acts in vain.
12. It therefore follows that the application is not tenable. The court cannot deal with the same. In the Matter of Advisory Opinions of the Court under Article 163 of the Constitution (Constitutional Application No. 2 of 2011 at para. 30), where the Supreme Court stated:
“...a court may not arrogate to itself jurisdiction through the craft of interpretation or by way of endeavours to discern or interpret the intentions of Parliament, where the legislation is clear and there is no ambiguity.”
13. I have said enough to state that this application is for striking out
14. Consequently the application dated 10/5/2023 is hereby struck out in the entirety. This file is closed.
Given under my hand and the seal of this honourable court at MOMBASA on this 11th day of May 2023..
1. This is stranger than fiction. The applicant filed a deceptionally urgent matter, though a certificate of urgency dated 10/52023. The same is a said to be an appeal from Mombasa SCC COMM E151 of 2023. The judgment is indicated to have been delivered on 30/1/2023.
2. The matter arises from the small claims court. The Applicant is said to have been auctioneers. They sue tip top auctioneers. The prayers sought are stay of execution pending determination of the application and thereafter pending the intended appeal. The next set of prayers is for setting aside a proclamation notice and restraining the execution of the decree.
3. The Applicant had filed a similar application dated1/3/2023. The Application for stay is slated for 15/6/2023. They have filed this suit for fear of attachment.
4. The small claims court section 38 provides as doth: -
5. 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.
6. I have had to write a Ruling instead of an order because of the futility of giving a hearing date. There is no appeal filed from the decision of the court below. This court has no jurisdiction to issue stay of execution without an appeal.
7. In the case of the Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, Nyarangi JA, as then he was stated as doth:-
“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 to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given”
8. Where do I get jurisdiction to handle this matter? The Jurisdiction is supposed to flow from Section 38 of the Small Claims Court. There is no appeal pending. There is nothing to be awaited. The application is even a duplex. there is admittedly a similar application, being Misc E052 of 2023. It is pending for hearing.
9. It is not every time execution occurs that a fresh suit is filed. The dispute on stay ought to have been field in the primary file or in the Appeal file. The court does not issue stay orders without any basis.
10. In the case of Congress Rental South Africa v Kenyatta International Convention Centre; Co-operative Bank of Kenya Limited & another (Garnishee) [2019] eKLR, justice J. A. MAKAU, stated as doth: -
“27. In the case of Macharia t/a Macharia & Co. Advocates –vs- East African Standard (Supra) the Honourable Court observed that:
“To be obsessed with the protection of an appellant or intending appellant in total disregard or fliting mention of the so far successful opposite party is to flirt with one party as crocodile tears are shed for the other, contrary to sound principle for the exercise of a judicial discretion. The ordinary principle is that a successful party is entitled to the fruits of his judgement or of any decision of the Court giving him success at any stage. That is trite knowledge and is one of the fundamental procedural values which is acknowledged and normally must be put into effect by the way applications for stay of further proceedings or execution, pending appeal are handled. In the application of that ordinary principle, the court must have its sight firmly fixed on upholding the overriding objective of the rules of procedure for handling civil cases in courts, which is to do justice in accordance with the law and to prevent abuse of the process of the Court.”
11. There being no Appeal, the court has no jurisdiction to entertain this application. In the case of Stephen Omondi Juma v Sprocer Awuor Rabote [2022] eKLR, the court stated as doth: -
“The appellant/applicant, from the exposition above, ought to have sought and obtained leave to appeal from the impugned order of 9/2/2022. Absence of leave to appeal as explained above renders not only the application dated 21/3/2022 impotent, but deprives this Court the jurisdiction to hear and determine this appeal on its merits. It is trite law that jurisdiction is everything, without which, a court of law acts in vain.
12. It therefore follows that the application is not tenable. The court cannot deal with the same. In the Matter of Advisory Opinions of the Court under Article 163 of the Constitution (Constitutional Application No. 2 of 2011 at para. 30), where the Supreme Court stated:
“...a court may not arrogate to itself jurisdiction through the craft of interpretation or by way of endeavours to discern or interpret the intentions of Parliament, where the legislation is clear and there is no ambiguity.”
13. I have said enough to state that this application is for striking out
14. Consequently the application dated 10/5/2023 is hereby struck out in the entirety. This file is closed.
Given under my hand and the seal of this honourable court at MOMBASA on this 11th day of May 2023..