NEW DAWN ACADEMY VS CLAIRE GATGIGIA (Suing through her next friend ZACCHEAUS NGARANGARI JAMES)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAJIADO

MISC. APPLICATION NO. E033 OF 2022

NEW DAWN ACADEMY SCHOOL…………………………………………….APPLICANT

VERSUS

C. G (Suing through her

Next Friend ZACCHEAS NGARAGARI JAMES…………………………RESPONDENT

RULING

Background

1. To put this ruling into perspective, a little background is apt. This matter has delayed determination firstly due to the numerous applications all seeking prayers including a prayer for stay of execution of the judgment and decree of the CMCC No. 224 of 2019 C. G (Suing through her Next Friend Zaccheas Ngaragari James) v. New Dawn Academy School. Secondly the delay was caused, partly by change of advocates representing the Applicant and thirdly, the delay was caused by the absence of the trial Judge due to medical issues.
2. The Applications I refer to are the following:
3. Notice of Motion dated 24^th August 2022 seeking stay of execution pending hearing and determination of that application and intended appeal as well as leave to lodge an Appeal out of time and costs of the application.
4. Notice of Motion dated 8^th December 2022 seeking stay of execution and stay of garnishee order nisi.
5. Chamber Summons dated 3^rd April 2023 seeking conservatory orders staying the execution of the judgment and decree in the CMCC 224 of 2019.
6. Notice of Motion dated 15^th May 2023 seeking stay of execution of the lower court matter and leave to amend the Notice of Motion dated 24^th August 2022.
7. Notice of Motion dated 10^th November 2023 seeking Contempt of Court orders against the Respondent for disobeying orders granted in Machakos on 17^th May 2023.
8. The Notice of Motion dated 8^th December 2022 was canvassed orally on 14^th February 2023 but ruling was not delivered until 18^th April 2023 due to absence of the trial Judge due to medical reasons. The Court dismissed the Notice of Motion dated 8^th April 2023.
9. Upon coming on board of the firm of Guandaru Thuita & Company Advocates, on 31^st March 2023, the other three applications mentioned above were filed. The Applicant also moved the Court in Machakos as the record of the Court dated 17^th May 2023 show. At the time to the proceedings in Machakos on 17^th May 2023 were going on, this court sitting in Kajiado had already pronounced itself on the Notice of Motion dated 8^th December 2022 through the Ruling delivered on 18^th April 2023.
10. The presence of numerous applications on record, all of which included a prayer for stay of execution, delayed the determination of this matter. On 7^th May 2024, counsel for the parties recorded a consent withdrawing the following: the Notice of Motion dated 10^th November 2023, prayer 2 of the Notice of Motion dated 15^th May 2023 and prayers 3 and 4 of the Notice of Motion dated 24^th August 2022. Counsel also agreed to file submissions in respect of the Notice of Motion dated 15^th May 2023.
11. The consent order, which was adopted as the order of this court settled almost all the issues in the pending applications except the prayer for leave to file the intended appeal out of time contained in prayer 5 of the Notice of Motion dated 24^th August 2024 and leave to amend that Notice of Motion of 24^th August 2024 contained, among other prayers sought in the Notice of Motion dated 15^th May 2023.

The Application

1. The Applicant seeks the following reliefs in the Notice of Motion dated 15^th May 2023 after the withdrawal of Prayer 2:
2. Leave to amend the Notice of Motion dated 24^th August 2022 in terms of the draft Amended Notice of Motion annexed to the Supporting Affidavit:
3. The Amended Notice of Motion be filed and served within such period as the court may determine and the Respondent to be at liberty to file any corresponding response within such period as the court may determine; that
4. In the event that this court allows the amendment, there be a stay of execution of the decree issued on 31^st May 2022 in Kajiado CMCC 224 of 2019 pending the hearing and determination of the Amended application; and
5. Costs of the Application be provided for.
6. The Application is supported by grounds on the face of it and in the Supporting Affidavit sworn by the Samuel Munene Muriithi who has described himself as the Director of the Applicant.
7. The grounds in support of the application are that the Applicant has replaced its former advocates, the firm of Muhindi Beatrice Advocates with the firm of Guandaru Thuita & Co. Advocates and that the Notice of Motion dated 24^th August 2022 has shortcomings in terms of content prayers sought and grounds in support of it and that it has become necessary to amend it to reflect the appropriate prayers. The rest of the grounds advanced support the prayer for stay of execution to the effect that the Respondent has commenced execution proceedings.
8. The Application is opposed by the Respondent through his Replying Affidavit sworn on the 23^rd May 2023. His case is that he successfully litigated in Kajiado CMCC No. 224 of 2019 and secured a judgment for Kshs 5,000,000 for general damages and Kshs 4,550 for special damages; that he initiated garnishee proceedings and obtained a garnishee order nisi and garnishee order absolute to attach funds amounting to Kshs 3,027,018 held at Co-operative Bank Kenya Limited.
9. The Respondent has stated that the Applicant has filed numerous applications all seeking stay and that he is abusing this court’s process given that the court has already pronounced itself on the issue of stay of execution in its ruling delivered on 18^th April 2023; that the Application dated 24^th August 2022 had been inordinately delayed and it has been overtaken by applications filed after it and that the ruling of 18^th April 2023 declined to grant stay of execution thereby rendering the Notice of Motion dated 24^th August 2022 nugatory and a mere academic exercise.
10. The Respondent has stated that she should be allowed to enjoy the fruits of her judgment and that the Respondent has full rights to execute her decree to obtain the entire decretal amount.
11. The Application was canvassed through written submissions.

Parties’ submissions

1. The Applicant’s submissions are dated 3^rd June 2024. The Applicant has submitted that the issues to be determined in this Application are whether the Application for amendment is merited or not and whether there is undue delay, in filing that application, which vitiates the discretion of the court to allow it. The Applicant relied on a decision of the Court of Appeal at Mombasa in J M K v M W M & another [2015] eKLR, which adopted the approach taken in Central Kenya Ltd v Trust Bank and 4 Others, CA NO. 222 OF 1998, where it was stated that:

“All amendments should be freely allowed and at any stage of the proceedings, provided that the amendment or joinder as the case may be, will not result in prejudice or injustice to the other party which cannot properly be compensated for in costs.”

1. It was submitted that the Respondent has not explained how the amendments sought would prejudice him beyond monetary compensation by way of costs. It was submitted that the Respondent is receiving instalments towards the payment of the Decretal sum and therefore no prejudice will be occasioned to him. The Applicant relied on Kampala Coach Limited v First Community Bank and Anor [2016] eKLR where the Court stated that mere delay is not a ground of declining leave to amend [and joinder too], but that such delay must be one likely to prejudice the other party beyond monetary compensation.
2. The Applicant further cited Central Kenya Limited v Trust Bank Limited (2000) EARL 365, where the Court noted that the ‘overriding considerations are, whether the amendments are necessary for the determination of the suit and whether the delay is likely to prejudice the opposing party beyond compensation in costs.’
3. The Applicant urged that this application be allowed for the following reasons: that the Amendments sought will improve the quality of the pleadings and proceedings; that the Application sought to be amended is yet to be set down for directions; that the amendments sought will bring out all materials necessary to enable the court reach an informed final decision, and that no prejudice will be caused against the Respondent.
4. The Respondent’s submissions are dated 3^rd June 2024. The Respondent has raised five issues for determination as follows:
5. Whether this Honourable Court can entertain the annexed draft amended application and the original application dated 24^th August 2022?
6. Whether the Application dated 15^th May 2023 and the annexed draft amended application are a violation of res judicata principle?
7. Whether the application dated 24^th August 2022 and the intended appeal have been rendered nugatory?
8. Whether the Court is functus officio having rendered its ruling on 18^th April 2023?
9. Who shall cater for the costs of this application?
10. It was submitted that this Court is functus officio, having pronounced itself in its ruling delivered on which dismissed the Notice of Motion dated 8^th December 2022. The Respondent relied on John Gilbert Ouma v Kenya Ferry Services Limited [2021] eKLR where it was held that:

“The doctrine of functus officio was considered by the Court of Appeal in Telcom Kenya Limited v. John Ochanda (Suing on his own behalf and on behalf of 996 former employees of Telcom Kenya Limited) [2013] 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”

………………………………….”

1. On the basis of that authority, it was submitted that this Court lacks capacity to entertain either the original application dated 24^th August 2024 or the draft annexed amended application because the Court is functus officio.
2. On the res judicata principle it was submitted that section 7 of the Civil Procedure Act bars any party from re-litigating on an issue to which a competent court has already heard and decided. The Respondent relied on Independent Electoral & Boundaries Commission v Maina Kiai & 5 others [2017] eKLR where it was held that:

“The rule or doctrine of res judicata serves the salutary aim of brining finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been detrend by a competent court. it is designed as a pragmatic and common-sensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and for a, to obtain at last, outcomes favourable to themselves. Without it there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute and calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice…………………….”

1. It was submitted that the Applicant sought stay of execution in all the applications it has filed before this Court and that this Honourable Court has rendered itself on the issue of stay pending the hearing and determination of the appeal and that the Applicant cannot attempt to bring an already determined issue through the back door as this would amount to this court sitting on its own.
2. On whether the application dated 24^th August 2022 and the intended appeal have been rendered nugatory, it was submitted that this Court has pronounced itself on the issue of stay in its ruling delivered on 18^th April 2023 after hearing both parties; that a sizable amount of the decretal sum has already been paid to the Respondent through garnishee proceedings and that the Applicant had made some payments by instalments and that all these were geared towards clearing the outstanding decretal sum. It was submitted that the application dated 24^th August 2022 has been overtaken by events and therefore the Applicant is trying to revive an application that has been rendered nugatory.
3. The Respondent relied on Gulf Timber & Hardware Supplies Limited v Ngaruiya & 5 others (Civil Appeal No. E203 of 2021) [2022] KECA 87 (KLR)4 February 2022) (Ruling) (With dissent -S ole Kantai) and submitted that garnishee proceedings and the instalment payments are irreversible and therefore both the application dated 24^th August 2022 and the intended appeal have been rendered nugatory.
4. The Respondent urged that the application dated 24^th August 2022 be dismissed with costs to the Respondent for being bad in law and an abuse of the court process.

Analysis and determination

1. In my considered view, the issues arising from this application that require my intervention are the following:
2. Whether this application is merited?
3. Whether the application dated 24^th August 2022 and the intended appeal have been rendered nugatory?
4. Whether this Honourable Court is functus officio?
5. As shown in paragraphs 5 and 6 of this Ruling, the parties herein entered into a consent dated 5^th April 2024 withdrawing the Notice of Motion dated 10^th November 2023, prayer 2 of the Notice of Motion dated 15^th May 2023 (application under consideration) and prayers 3 and 4 of the Notice of Motion dated 24^th August 2022. What remained in that latter application (24^th August 2022, in its original form, is prayer 5 (seeking leave to lodge appeal out of time), 6 (seeking orders for leave granted to operate as stay of all proceedings), 7 (seeking costs of the application) and 8 (seeking any other orders that meets ends of justice).
6. The application dated 15^th May 2023 seeks leave to amend the one dated 24^th August 2022 in terms of the draft attached to the Supporting Affidavit. It also seeks to stay the execution of the decree issued on 31^st May 2022 in Kajiado CMCC 224 of 2019. I have read the draft amended Notice of Motion dated 24^th August 2024. In its draft amendments, that application still seeks stay of execution pending inter partes hearing and determination of that application and pending the intended appeal as well as leave to lodge the appeal out of time.
7. It has been argued by the Respondent that this Court lacks jurisdiction to entertain an application for stay of execution because the Court is functus officio and further that the matter is res judicata.
8. This Court pronounced itself in its Ruling delivered on 18^th April 2023. In paragraph 10 of that Ruling, I stated as follows:

“10. I have considered this application under determination. I have noted that the judgment of the lower court in CMCC No. 224 of 2019 was delivered on 31^st May 2022. The Applicant filed Notice of Motion application dated 24^th August 2022 on 29^th August 2022. It was during High Court Vacation. The Application was brought under Certificate of Urgency dated 24^th August 2022………. The Court on 31^st August 2022 declined to admit the matter for hearing during court vacation and directed that the matter be dealt with in the new term. The matter was given a date for mention on 17^th January 2022.

11. In the meantime, the Applicant filed the current application on 8^th December 2022 under certificate of urgency. The matter was not certified urgent. It was allocated mention date on 21^st December 2022. On that date, Ms Muhindi for the Applicat, informed the court that she sought directions on the application dated 8^th December 2022. She did not mention the earlier pending application even though it already had a mention date. It was however relevant in that some of the orders sought in that application were similar to the ones sought in the application dated 8^th December 2022….”

1. I noted in that ruling that the Applicant had filed the application dated 8^th December 2022 which also sought stay of execution when the earlier application of 24^th August 2024 was still pending. In paragraph 15 of that Ruling, I noted that the Applicant was acting as an afterthought in neglecting to prosecute the earlier application (24^th August 2022) and that had the Applicant been serious in seeking leave to appeal out of time and the other reliefs sought in the application dated 24^th August 2022, it would have pursued that application after the court declined to admit it during court vacation on 31^st August 2022.
2. I dismissed the Application of 8^th December 2022 and stated that the Applicant ought to have prosecuted the earlier application (24^th August 2024) first or withdrawn it before prosecuting the application dated 8^th December 2022. It was my considered view that the Applicant was abusing this court’s process.
3. The draft amended application dated 24^th August 2022 includes prayers for stay of execution pending the hearing and determination of that application and pending the hearing and determination of the intended appeal. There is nothing new there. The Applicant ought to be aware that grant of stay of execution was declined by this court through its ruling delivered on 18^th April 2023. I want to believe that the decision to withdraw the other applications and prayers seeking stay of execution was informed by the dismissal by this court of the Application dated 8^th December 2022.
4. In the case cited by the Respondent, Telcom Kenya Limited v. John Ochanda (Suing on his own behalf and on behalf of 996 former employees of Telcom Kenya Limited) [2013] eKLR, 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”

1. Further, I am guided by the decision of on Independent Electoral & Boundaries Commission v Maina Kiai & 5 others [2017] eKLR where it was held that:

“The rule or doctrine of res judicata serves the salutary aim of brining finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been detrend by a competent court.

1. Section 7 of the Civil Procedure Act provides that:

No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.

1. I am persuaded that this court, having rendered itself on the issue of stay lacks capacity to grant the prayers of stay of execution. By allowing this application, this court would be giving the Applicant a second bite of the cherry. This court will be allowing the Applicant to use the back door and re-introduce the prayers for stay which prayers this court declined to grant.
2. It can be argued that there is the prayer seeking leave to file an appeal out of time which prayer has not been litigated or declined by this court. Section 79G of the Civil Procedure Act is clear that time to file appeal outside the provided time can be extended on condition that the appellant satisfies the court that there is sufficient cause for not filing the appeal in time.
3. The Applicant blames the court for delivering judgment without notice to them. It is claimed that judgment was to be delivered on 26^th May 2022 but the trial magistrate was on leave and that no notice was issued to the parties to attend court. It is claimed that judgment was delivered on 31^st May 2022 and that the Respondent’s advocate is the one that served them with the judgment by email. If what is stated is true, it means that the Applicant was indolent and did not pursue the issue to know when judgment would be delivered. To my mind this is not sufficient cause.
4. Besides, this court is on record stating that the Applicant did not actively pursue prosecution of that application. He came to court after garnishee nisi was issued and prosecuted the application dated 8^th December 2022 and ignored the application dated 24^th August 2022 even though it was older and already had a directions issued.
5. In my considered view, the Applicant has failed to persuade this court to grant the orders it is seeking. This court has pronounced itself on the issue of stay of execution and is therefore functus officio. Secondly, this matter is res judicata. Thirdly the applicant has failed to show sufficient cause why this court should grant him leave to file appeal out of time.
6. As argued by the Respondent, the intended appeal has been rendered nugatory. The decretal sum has been sufficiently paid and the application dated 24^th August 2022 has been overtaken by events.
7. Consequently, the application dated 15^th May 2023 is hereby dismissed with costs to the Respondent.
8. Orders shall issue accordingly.

Dated, signed and delivered this 17^th January 2025.