REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW DIVISION
JR/E091/2023
BETWEEN
PAUL MBATHA ………………....…….….. 1ST EX PARTE APPLICANT
SAMMY NDAMBUKI MULI ……………2ND EX PARTE APPLICANT
VS
CHIEF MAGISTRATE
MILIMANI COMMERCIAL LAW COURTS ……. 1ST RESPONDENT
KISERIAN DEVELOPMENT
COMPANY LTD ………………………………………...2ND RESPONDENT
JUDGMENT
1. The application that is before the court for determination is the one dated 19.7.23 wherein the applicant seeks the following orders;
1) AN ORDER OF CERTIORARI do issue to remove to this Honourable Court to quash the entire proceedings and decisions in Milimani Commercial Chief Magistrate Civil Suit No. 8046 Of 2016; Kiserian Development Company Limited Versus East Aberdare Contract Kenya Limited & 3 Others.
2) The costs of this application be awarded to the Applicants.
2. The APPLICATION is predicated on the grounds as set out in the Certificate of Urgency, the Chamber Summons, the Statement pursuant to Order 53 Rule 2 all dated 17th July 2023 and the Verifying/Supporting Affidavit verifying facts to be relied upon sworn by Paul Mbatha on 17th July 2023 and on such other grounds to be adduced at the hearing hereof.
Brief background;
3. On 29th November 2016, the 2nd Respondent instituted a civil suit before the 1st Respondent being Milimani Commercial Chief Magistrate Civil Suit No. 8046 of 2016: Kiserian Development Company Limited vs East Aberdare Contract Kenya Limited and 3 Others seeking among others, Kshs. 18 million plus monthly interest of 4% from 20th February 2016. The 4% interest was in the contract produced in court and was claimed as of right.
4. The 1st Respondent struck out the Exparte Applicant’s Defence since it did not raise triable issues.
The Applicants’ case;
5. The applicants deny having submitted to the jurisdiction of the Court in the statement of defence dated 24th February 2017 yet the said statement of defence was struck out from the record.
6. It is their case that jurisdiction flows from the law and it does not flow from pleadings and parties cannot confer jurisdiction on a court even if they consent and even if the defence was still on record, that could not confer jurisdiction to the Court.
7. Reliance is placed in the case of Orange Democratic Movement v Yusuf Ali Mohamed & 5 others [2018] eKLR, the Court of Appeal further stated: -
“[44] …. a party cannot through its pleadings confer jurisdiction to a court when none exists. In this context, a party cannot through draftsmanship and legal craftsmanship couch and convert an election petition into a constitutional petition and confer jurisdiction upon the High Court. Jurisdiction is conferred by law not through pleading and legal draftsmanship. It is both the substance of the claim and relief sought that determines the jurisdictional competence of a court... (Emphasis ours).”
8. It is their case that this Court only needs to look at the prayers in the Plaint to determine if the Chief Magistrate Court had jurisdiction and an application for joinder was filed by the applicants herein has no bearing on jurisdiction.
9. They argue that the suit was filed 9 months after the 18 Million was due and so 4% interest per month was ascertainable. At the time of filing the suit the claimed interest was 4% of 18 Million time 9 months. That gives you Kshs. 6,480,000.
10. It is their case that even if the court assumes the 4% monthly interest was on the principal sum of 18 Million, the interest claimed as of right was Kshs. 3,600,000 and the claim would be 21, 600,000. Whichever way one looks at it, there was no jurisdiction.
11. Reliance is placed in the case of Joreth Limited -vs-Kigano & Associates [2002] IEA 92 is the locus classicus. The decretal amount is in excess of 44 Million. The Chief Magistrate had no jurisdiction to determine the matter.
12. The 2nd Respondent is asking the court to cast a blind eye on jurisdictional question because it will injure integrity of the Courts.
13. The High Court is being asked to exercise its supervisory jurisdiction and judicial review to quash the proceedings.
14. The applicants argue that if the 2nd Respondent felt that leave was wrongfully issued by this Court due to the alleged six months’ time limit, it should have appealed the same or applied for review.
15. The grant of leave remains unchallenged and the issue of leave should not arise at this stage. Even if the 2nd Respondent was allowed to bring the issue of leave at this stage, the argument would still fall.
16. It is their submission that the Ruling disallowing the Applicants application was delivered on 13th July 2023 and this suit was filed less than a week afterwards.
17. In the alternative they argue that if these proceedings were filed more than 6 months after the decisions and or the impugned proceedings, such argument would still fall because the 6 months’ time limit does not include anything covered by the ultra vires rule or nullities or decisions made without jurisdiction as set out in the Court of Appeal in Rep V Judicial Enquiry into The Goldenberg Affair Ex Parte Mwalulu, Hmisc 1279/04. The ground for this Application is jurisdiction. The Court stated;
“We also apply the maxim ex nihilo nihil fit- “out nothing comes nothing”. We hold that nullities are not covered by the six months’ limitation both on the wording of the rules and as a matter of principle due to the nature of nullities. We further hold in line with the GITHUNGURI VS. REPUBLIC [1986] KLR 1 that this court has inherent powers to exercise jurisdiction over tribunals and individuals acting in administrative or quasi-judicial capacity and we would invoke this jurisdiction to quash nullities and illegalities.”
18. The court held that the 6 months’ limitation only applies to judgments, orders, decrees, convictions or other proceedings of an inferior court and that the time limit under S 9 (3) (O 53 Rule (2)) does not include anything covered by the ultra vires rule or nullities or decisions made without jurisdiction.
19. It is their case that if a decision is a nullity, there is no decision at all and therefore it cannot be limited by the 6 months’ period.
20. In any event, on 2nd October 2023 the Court extended the orders issued on 18th July 2023 and the Supplementary/Supporting Affidavit was filed out of abundance of caution. The defect on the heading of an affidavit does not go to the substance and substance remains the same.
21. It is their case that although the jurat of the Replying affidavit by the 2nd Respondent does not contain any paragraph and that makes it defective. However, unlike the 2nd Respondent, they have let that to pass.
22. Further ashore, the Ex-parte Applicant argues that's the Courts derive their jurisdiction from the Constitution of Kenya 2010 and Statute as enacted by Parliament.
23. They rely on the Supreme Court in Samuel Kamau Macharia v Kenya Commercial Bank & 2 Others, Civil Application No. 2 of 2011 inter alia:
“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings.
24. Section 7(1) of the Magistrates' Courts Act, 2015 provides as follows on the pecuniary jurisdiction of Chief Magistrate’s Court:
(1) A magistrate's court shall have and exercise such jurisdiction and powers in proceedings of a civil nature in which the value of the subject matter does not exceed —
(a) twenty million shillings, where the court is presided over by a chief magistrate;
(b) fifteen million shillings, where the court is presided over by a senior principal magistrate;
(c) ten million shillings, where the court is presided over by a principal magistrate;
(d) seven million shillings, where the court is presided over by a senior resident magistrate; or
(e) five million shillings, where the court is presided over by a resident magistrate.
25. The Ex-parte Applicants submit that the pecuniary jurisdiction of a matter is determined from the pleadings filed before court as canvassed in the prayers or in the subject matter of the claim.
26. Where the pleadings claim for an amount over and above Kenya Shillings Twenty Million, then the chief magistrate court does not have jurisdiction to hear the claim and must down its tools.
27. The Court of Appeal at Kisumu, by a majority decision, in Pelezia Bakari Salim v Somoire Keen & 2 others [2020] eKLR in allowing the appeal found thus:
“Neither a Resident magistrate nor a Chief magistrate then had jurisdiction to award the amount of damages that was prayed for by the appellant. The case was simply filed before a court that had no jurisdiction to award the kind of damages that were sought. The second ground is therefore without merit and must fail. The same applies to the third ground of appeal that faults the learned judge for reducing the award of Kshs.11,485,336 toKshs.2,000,000. The basis for the reduction was well explained.”
28. The 2nd Respondent claim as at the time of filing the suit was a total of Kshs. 24,480.000.00 being, the Claimed contract sum of Kshs. 18 Million plus Nine (9) months’ interest a total of Kshs. 6,480,000.
29. Consequently, the amount claimed by the 2nd Respondent at the time of filing its claim having been over and above the prescribed Kshs. 20 Million limit fell well outside the jurisdiction of the Chief Magistrate court.
30. The 2nd Respondent’s claim was thus filed without jurisdiction and is therefore a nullity incapable of enforcement.
31. The 1st Respondent ought, in proper exercise of conferred powers to have downed its tools for want of jurisdiction.
32. The Court of Appeal in Joseph Muthee Kamau & another v David Mwangi Gichuru & Another [2013] eKLR allowed the appeal on grounds that the pecuniary jurisdiction of the Chief Magistrate was exceed stated thus:
“When a suit has been filed in a court without jurisdiction, it is a nullity. Many cases have established that; the most famous being the case of Kagenyi v Musirambo [1968] EA 43. The same would apply to pecuniary jurisdiction in a claim for special damages where the liquidated sum claimed exceeds the court’s pecuniary jurisdiction. However, this does not apply to the present case in a claim for general damages where it is the respondents who appointed, through their own assessment, what the amount of damages they would claim. The respondents are permitted to limit the amount of general and special damages they would like to claim in order to bring themselves within the pecuniary jurisdiction of a particular court. The decision of Justice J.B. Ojwang in Armitral Bagwanji Shah v Mash Express Ltd & Others (Nairobi HCCC 1095 of 2005 (Unreported)) is in accord.
In the instant case, the subordinate court had jurisdiction subject to the upper limit of the damages being Kshs. 300,000/=. We hold that jurisdiction cannot be conferred at the time of delivery of judgment. Jurisdiction does not operate retroactively. Jurisdiction must exist at the time of filing suit or latest at the commencement of hearing.” (Emphasis Ours)
33. The Ex-parte Applicants invite this Honourable Court to find that the Chief Magistrate Court, did not have the jurisdiction to hear and determine the 2nd Respondent’s claim for Kshs. 24,480,000.00.
34. In Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd. [1989] KLR 1, Nyarangi, Masime and Kwach, JJ.A who had this to say of jurisdiction:-
“… 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:
“… … 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 judgment is given.’ See Words and Phrases Legally defined – Volume 3: I– N Page 113.” (Emphasis Ours)
35. Since The 1st Respondent having failed to down its instruments for want of jurisdiction, the Exparte Applicant now turns to this honorable court to exercise its Supervisory power and mandate as outlined under Article 165(6) of the Constitution of Kenya,2010 which provides inter alia.
36. Reliance is placed in Housing Finance Company of Kenya Limited v Brick & Mortar Holdings Limited [2020] eKLR the Court held as follows:
It is their firm belief that it is the duty of every court, before entertaining any matter before it, and in particular ex-parte, to first satisfy itself that it has jurisdiction to handle the same. This will enable that court to save the parties the unnecessary costs in setting aside worthless proceedings and orders arising from unlawful exercise of jurisdiction.
Accordingly, this Court finds that the trial Court did not have the pecuniary jurisdiction to entertain the application before it and the suit generally.
Having found that the trial court lacked jurisdiction, I need not then delve to what the effect of the orders it gave was.
37. This warrants the intervention of this Honourable Court by grant of judicial review orders in exercise of its supervisory powers, the Ex-parte Applicant refers the holding in Republic vs Attorney General & 4 others ex-parte Diamond Hashim Lalji and Ahmed Hasham Lalji [2014] eKLR.:-
“Judicial review applications do not deal with the merits of the case but only with the process. In other words, judicial review only determines whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters. It follows that where an applicant brings judicial review proceedings with a view to determining contested matters of facts and in effect urges the Court to determine the merits of two or more different versions presented by the parties the Court would not have jurisdiction in a judicial review proceeding to determine such a matter and will leave the parties to resort to the normal forums where such matters ought to be resolved. Therefore, judicial review proceedings are not the proper forum in which the innocence or otherwise of the applicant is to be determined and a party ought not to institute judicial review proceedings with a view to having the Court determine his innocence or otherwise. To do so in my view amounts to abuse of the judicial process. The Court in judicial review proceedings is mainly concerned with the question of fairness to the applicant. "
38. The Exparte Applicants submit that the 1st Respondent improperly exercised its power to determine the 2nd Respondent’s case while it did not have proper jurisdiction to do so.
39. Having acted outside its Constitutional mandate, this Honourable Court is empowered by the Constitution of Kenya, 2010 to supervise subordinate court and issue such judicial review orders as are necessary to right the wrongs of the 1st Respondent.
The 2nd respondent’s case
40. The 2nd Respondent has filed the Grounds of Opposition dated October 2, 2023 as well as the Replying Affidavit deponed by Milton Mugambi Imanyara on October 30, 2023 in opposition to the instant Application.
41. It is their case interalia that Order 53 Rules 1 (1) and 2 of the Civil Procedure Rules, 2010 limit the duration for which leave for an order of certiorari to remove any judgment, order, decree, conviction or other proceedings for the purpose of its being quashed may be granted to 6 months after the date of such judgment, order, decree, conviction or other proceedings or such other shorter period as may be prescribed.
Th argue that the Application is time-barred as it seeks an order of certiorari to have the proceedings in Milimani Commercial Chief Magistrate Civil Suit No. 8046 of 2016; Kiserian Development Company Limited v East Aberdare Contract Kenya Limited & 3 Others (the Lower Court suit) quashed which proceedings concluded over 4 years ago following the ruling delivered on April 27, 2019 by Hon. P. N. Gesora (Mr.) Chief Magistrate and decree thereof issued on 24th July, 2019.
It is further their case that the Application is incurably defective as it is not supported by a valid affidavit. The ex parte Applicants purport to rely on an affidavit sworn with respect to an employment matter filed at Meru Law Courts between Wubshet Megesha Amakeleque and Habida Dima Duma v The County Labour Officer, Isiolo County & Another.
42. It is their case that the Ex-parte Applicants purport that the 1st Respondent lacked the pecuniary jurisdiction to hear and determine the suit while on the contrary, the principal amount was Kshs. 18,0000,000.00 which is well within the 1st Respondent’s pecuniary jurisdiction pursuant to Section 5 of the Magistrates’ Court Act.
43. They argue that the ex parte Applicants’ contention that the 1stRespondent lacked pecuniary jurisdiction is a malicious attempt to avoid paying the decretal sum.
44. On October 16, 2015, the 2nd Respondent and East Aberdare Contract Kenya Limited executed a loan agreement for the sum of Kshs. 10,000,000.00 (the Loan Agreement. The ex-parte Applicants (who are directors of East Aberdare Contract Kenya Limited) guaranteed to repay the said amount to the 2nd Respondent in the event that East Aberdare Contract Kenya Limited failed to pay. The ex –parte Applicants had guaranteed to repay the principal sum of Kshs. 10,000,000.00 together with interest of Kshs. 8,000,000.00. The said amount was to purportedly perform a works subcontract between the Interested Party and ISULUX INGENIERA S. A.
45. The East Aberdare Contract Kenya Limited breached the terms of the said Agreement by refusing, failing and/or neglecting to pay the debt and the ex-parte Applicants breached the terms of their undertaking by failing to repay the total amount of Kshs. 18,000,000.00. The ex-parte Applicants issued the 2nd Respondent with twenty cheques for Kshs. 900,000.00 each, all payable on February 20, 2016, amounting to an aggregate sum of Kshs. 18,000,000.00 which cheques were dishonoured upon presentation on March 31, 2016.
46. As a result, the 2nd Respondent instituted a suit for breach of contract at the Chief Magistrate’s Court, Milimani Commercial Courts in Milimani CMCC Suit No. 8046 of 2016: Kiserian Development Co. Limited vs. East Aberdare Contract Kenya Limited & 3 Others.
47. The ex-parte Applicants filed a statement of defence that was struck out in the Ruling delivered on April 29, 2019 pursuant to which judgment was entered in favour of the 2nd Respondent.
48. The 2nd Respondent extracted the Decree dated July 24, 2019 for the principal amount of Kshs. 18,000.000.00accrued interest of Kshs. 26,640,000.00 and costs for Kshs. 599,405.00.
49. The 2nd Respondent’s attempts to execute the said Decree have been frustrated by the ex-parte Applicants.
50. The Lower Court has rendered itself severally affirming its jurisdiction since the principal sum of Kshs. 18,000,000.00was within its pecuniary jurisdiction and the Ex-parte Applicants have never appealed any decision of the Lower Court.
51. The ex-parte Applicants have instead instituted the instant proceedings.
52. The ex-parte Applicants admitted the 1st Respondent’s jurisdiction over the Lower Court proceedings in their Statement of Defence dated February 24, 2017, the ex-parte Applicants at paragraph 9 thereof, admitted that the 1st Respondent indeed had the jurisdiction to hear and determine the Lower Court suit.
53. Reliance is placed in the case of Embakasi East Court Company Limited v Kenya Power and Lighting Company (2019) eKLR while dismissing an objection to the court’s jurisdiction after a party expressly admitted the court’s jurisdiction in its pleadings: -
“Lastly, it is observed that the issue of jurisdiction has been raised against a background where the defendant, through pleadings, expressly admitted that this court had jurisdiction. I do not think it would be proper if this Court were to ignore the admission in paragraph 14 of the defence and proceed to lock the plaintiff out of the seat of justice without prior amendment to paragraph 14 of the defence.”
54. The ex-parte Applicants filed a Notice of Motion Application dated November 7, 2017 in the said Lower Court suit seeking inter alia the joinder of ISULUX INGENIERA S. A as an Interested Party.
55. Reliance is placed in the case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd on the issue of jurisdiction as they seek to advance the argument that it defeats the course of justice to object jurisdiction after participating in a matter until judgement is entered having not raised the issue during the preliminary stages of the proceedings.
56. They urge this Honourable Court to consider that the subject matter of the proceedings in the Lower Court was well within its pecuniary jurisdiction.
57. The ex parte Applicants had an opportunity to appeal against the Ruling of the Lower Court delivered on July 29, 2019 but they did not see the need to appeal.
58. It is their case that the ex parte Applicants have also maliciously attempted to amend the Agreement by falsely submitting that the Loan Agreement imposed a 4 % interest in order to prove their contention that the Lower Court lacked the pecuniary jurisdiction.
59. The principal loan amount was Kshs. 10,0000,000.00 and the agreed interest at paragraph 2.2.1 on the repayment of the loan was Kshs. 8,000,000.00 hence the total amount sought by the 2nd Respondent in the Lower Court suit was Kshs. 18,000,000.00.
60. It is its case that fact that the decree was extracted at the rate of 4% p.m.should not be the basis for discrediting and quashing the Lower Court proceedings.
61. Imperatively the ex parte Applicants’ argument if sustained,shall inevitably open a Pandora's box of absurdities. This is because the 2nd Respondent at the time of filing the Plaint sought a sum that was well within the pecuniary jurisdiction of the Chief Magistrate’s Court.
62. It argues that under Section 26 of the Civil Procedure Act, 2010 the award of interest on the principal amount is at the sole discretion of the court. This interest is tabulated at the time of extracting a decree. A litigant has no control over what amount or award will be given by the court or tabulated in the decree.
63. Section 11 of the Civil Procedure Act, 2010 stipulates that a suit ought to be instituted at the court of the lowest grade. The said Section provides inter alia that: -
“Every suit shall be instituted in the court of the lowest grade competent to try it, except that where there are more subordinate courts than one with jurisdiction in the same county competent to try it…”
64. Based on this provision, the 2nd Respondent who was seeking to recover the sum of Kshs. 18,000,000.00 as agreed in the Loan Agreement, lawfully instituted the suit at the Lower Court which court had the pecuniary jurisdiction over a matter whose subject value was Kshs. 18,000,000.00.
65. It is submitted that granting the prayers sought in the Application would not meet the ends of justice but create an absurdity, undermine the dignity of the courts and countenance the ex parte Applicants' brazen and continued abuse of the court process.
66. The impugned Decree dated July 24, 2019 following the Ruling delivered on April 29, 2019 clearly indicates that the principal amount was Kshs. 18,000,000.00 which is well within the Lower Court’s pecuniary jurisdiction.
67. In any case, the amount exceeding the pecuniary jurisdiction emanates from the accrued interest calculated in the Decree which amount was not ascertainable at the time of filing the suit since the Lower Court could not have pre-empted the amount of time the suit would last in court and estimate the interest that was likely to accrue before judgment.
68. It invites this court to disregard the ex parte Applicants’ case since if allowed and the Lower Court proceedings are quashed, such a determination would result in absurdity as litigants would be forced to disregard the provisions of Section 11 of the Civil Procedure Act, 2010 and instead file all suits, even those whose subject matter is below Kshs. 20,000,000.00 as was the case with the 2nd Respondent; at the High Court to avoid the possibility that over time, the interest that may accrue would exceed the subordinate court’s jurisdiction and the proceedings would then end up being declared as nullity for want of jurisdiction.
69. The Court of Appeal in the case of the Center for Rights Education and Awareness & anothers vs. John Harun Mwau & 6 others civil appeal no 74 of 2012 [2012] eKLR reaffirmed the principles that guide court in interpreting a statute. The court stated thus: -
“…These principles are not new. They also apply to the construction of statutes. There are other important principles which apply to the construction of statutes which, in my view, also apply to the construction of a Constitution such as presumption against absurdity – meaning that a court should avoid a construction that produces an absurd result; the presumption against unworkable or impracticable result - meaning that a court should find against a construction which produces unworkable or impracticable result; presumption against anomalous or illogical result, - meaning that a court should find against a construction that creates an anomaly or otherwise produces an irrational or illogical result and the presumption against artificial result – meaning that a court should find against a construction that produces artificial result and, lastly, the principle that the law should serve public interest –meaning that the court should strive to avoid adopting a construction which is in any way adverse to public interest, economic, social and political or otherwise…” Emphasis ours
70. It is therefore clear that the Application is an abuse of the court process as it is marred with grossly misrepresented facts.
71. Reliance is placed in the case of Muchanga Investments Limited vs. Safaris Unlimited (Africa) Ltd & 2 others Civil Appeal No. 25 of 2002 (2009) eKLR, pronounced itself on the abuse of court process as follows: -
“The term abuse of court process has the same meaning as abuse of judicial process. The employment of judicial process is regarded as an abuse when a party uses the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice. It is a term generally applied to a proceeding, which is wanting in bonafides and frivolous, vexatious or oppressive.”
72. Further, in the case of The Kenya Section of the International Commission of Jurists vs. Attorney General & 2 Others (Supr Ct Cr. Application No. 1 of 2012), the Honourable Court considered what constituted ‘abuse of the process’ and held as follows:
“The concept of abuse of the process of court bears no fixed meanings but has to do with the motive behind the guilty party’s actions and with a perceived attempt to maneuver the court’s jurisdiction in a manner incompatible with the goals of justice.”
73. The 2nd Respondent has attempted all means to execute the Decree including instructing auctioneers to execute warrants of attachment of moveable property and when the ex parte Applicants’ assets were not traceable, opting to execute the decree by arrest and detention whereby the Lower Court issued warrants of arrest and it was at that point that the ex parte Applicant pulled out the card of ‘lack of pecuniary jurisdiction to make sure that they do not settle the decretal amount.
74. It is its submission that unlike in criminal proceedings, this court cannot quash civil proceedings owing to the fact that civil matters are not administrative decisions. A civil matter is filed by an individual seeking certain orders against another party. Where a party challenges the institution of such proceedings, the law has provided mechanisms to challenge such proceedings.
75. It submits that a party can challenge the jurisdiction of the court by either filing a preliminary objection or filing an application to strike out the pleadings as envisioned under Order 2 Rule 15 of the Civil Procedure Rules, 2010.In the instant case, the ex parte Applicants neither filed a preliminary objection.
76. It is submitted that contrary to the ex parte Applicant’s allegations, no illegality, unreasonableness or contravention of the rules of natural justice can be attached to the Lower Court proceedings. The ex parte Applicants were afforded an opportunity for fair hearing and even when a decision was made procedurally against them, they did not file an appeal challenging the decision.
77. On another front,it argues that the instant Application is time-barred as it seeks an order of certiorari to have the Lower Court proceedings. The proceedings concluded over 4 years ago following the ruling delivered on April 27, 2019 by Hon. P. N. Gesora (Mr.) Chief Magistrate and decree thereof issued on July 24, 2019.
78. Section 9(3) of the Law Reform Act which stipulates that:
“In the case of an application for an order of certiorari to remove any judgment, order, decree, conviction or other proceedings for the purpose of its being quashed, leave shall not be granted unless the application for leave is made not later than six months after the date of judgment, order, decree, conviction or other proceeding or such shorter period as may be prescribed under any written law; and where that judgment, order, decree, conviction or other proceeding is subject to appeal, and a time is limited by law for the bringing of the appeal, the court or judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.”
79. Order 53 Rule 2 of the Civil Procedure Rules, 2010 provides that: -
“Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, decree, conviction or other proceedings for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceeding or such shorter period as may be prescribed by an Act; and where the proceeding is subject to appeal and a time is limited by law for the bringing of the appeal, judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.”
80. This mandatory nature of the six-month time limitation was upheld in the case of Republic v National Irrigation Board & another Ex parte Peter Muriithi Muriuki[2021] eKLR where the court held that: -
“It therefore appears that the position and the mandatory prescriptions of Sections 9(3) of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules remain in force even after the promulgation of the Constitution. Courts have dutifully attempted to frame the correct perspective with which litigants ought to approach Article 159(2) of the Constitution as well as the Overriding Objectives governing rules of Civil Procedure; not as a magic wand to waive away rules and procedures set out in law but as provisions enriching already defined principles and allowing for a greater reality for justice between the parties.”
81. It invites this court to adopt a similar finding and dismiss the ex parte Applicants’ Application as it was instituted beyond the statutorily prescribed timelines and more so, without the leave to institute the same out of time.
82. It is also submitted that the instant Substantive Motion Application while the Chamber Summons Application for leave dated July 17, 2023 was supported by a defective ‘verifying/supporting affidavit’. This purported verifying/supporting affidavit is in reference to another matter, with parties who are strangers to this suit.
83. The affidavit relied upon by the ex parte Applicants is with respect to an employment matter filed at Meru Law Courts between Wubshet Megesha Amakeleque and Habida Dima Duma v The County Labour Officer, Isiolo County & Another.
84. Reliance is place on the case of Microsoft Corporation vs. Mitusimi Computer Garage Ltd (2001) 2 EA 460 and humbly submit that the said affidavit is incurably defective and ought to be struck out from the record. Accordingly, the instant Substantive Motion is defective and ought to be struck out.
85. The Application does not meet the threshold to grant the judicial review orders and we therefore pray that this Honourable Court dismisses the Notice of Motion Application dated July 19, 2023 with costs.
ANALYSIS AND DETERMINATION
86. The question of jurisdiction is well established in the locus classicus, Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd where the Court pronounced itself as such:
“I think 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.” Emphasis ours
87. Contrary to the 2nd Respondent’s submissions, the issue of jurisdiction can be raised at any point in the proceedings. It can even be raised at the appeal stage or during the post judgment judicial review proceedings as is the case before this court.
88. Section 9(3) of the Law Reform Act which stipulates that:
“In the case of an application for an order of certiorari to remove any judgment, order, decree, conviction or other proceedings for the purpose of its being quashed, leave shall not be granted unless the application for leave is made not later than six months after the date of judgment, order, decree, conviction or other proceeding or such shorter period as may be prescribed under any written law; and where that judgment, order, decree, conviction or other proceeding is subject to appeal, and a time is limited by law for the bringing of the appeal, the court or judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.”
89. Order 53 Rule 2 of the Civil Procedure Rules, 2010 provides that: -
“Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, decree, conviction or other proceedings for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceeding or such shorter period as may be prescribed by an Act; and where the proceeding is subject to appeal and a time is limited by law for the bringing of the appeal, judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.”
90. In the case of Republic v National Irrigation Board & another Ex parte Peter Muriithi Muriuki [2021] eKLR the court held that: -
“It therefore appears that the position and the mandatory prescriptions of Sections 9(3) of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules remain in force even after the promulgation of the Constitution. Courts have dutifully attempted to frame the correct perspective with which litigants ought to approach Article 159(2) of the Constitution as well as the Overriding Objectives governing rules of Civil Procedure; not as a magic wand to waive away rules and procedures set out in law but as provisions enriching already defined principles and allowing for a greater reality for justice between the parties.”
91. In the instant suit, the lower court the judgment was delivered on 27th April, 2019 and decree thereof issued on 24th July, 2019.The court must determine whether or not it has jurisdiction or not over a case that has been filed more than six months after the judgment.
92. Section 9(3) of the Law Reform to Act as well as Order 53 Rule 2 of the Civil Procedure Rules expressly stipulate that in case of an application for an order of certiorari ought to be filed not later than six months after the date of the decision complained of.
93. The suit herein was instituted beyond the statutorily prescribed timelines and without the leave to institute the same out of time.
94. In the case of Dickson Ngigi Ngugi v Commissioner of Lands S.C Petition No. 9 of 2019 [2019] eKLR, The Supreme Court made binding finding that Jurisdiction goes to the root of any cause or dispute before a court of law. A court must exercise restraint to avoid overstepping its constitutional role in order to maintain its legitimacy. If a court has no jurisdiction, a judgment rendered therein does not adjudicate the dispute. It does not bind the parties, nor can it be made the foundation of any right. It is a nullity without life or authority. In short, it is coramnon judice and amounts to a nullity because, as Nyarangi, JA famously said in the locus classicus, Owners of the Motor Vessel “Lillian S” v Caltex Oil, (Kenya) Ltd [1989] KLR 1, “jurisdiction is everything.
95. It would be remiss of me not to address the issue of jurisdiction from the purview and angle of Section 7(1) of the Magistrates' Courts Act, 2015 which provides as follows on the pecuniary jurisdiction of Chief Magistrate’s Court:
(1) A magistrate's court shall have and exercise such jurisdiction and powers in proceedings of a civil nature in which the value of the subject matter does not exceed —
(a) twenty million shillings, where the court is presided over by a chief magistrate;
(b) fifteen million shillings, where the court is presided over by a senior principal magistrate;
(c) ten million shillings, where the court is presided over by principal magistrate;
(d) seven million shillings, where the court is presided over by a senior resident magistrate; or
(e) five million shillings, where the court is presided over by a resident magistrate.
96. The pecuniary jurisdiction of the trial court is Kshs.20,000,000.The trial court entertained a claim that was outside its jurisdiction as provided for under Section 7(1) of the Magistrates' Courts Act, 2015.
97. A Judgment that is entered a by a court that lacks jurisdiction amounts to an illegality within the case of Pastoli case principles.
98. The 6 months’ time limit does not include anything covered by the ultra vires rule or nullities or decisions made without jurisdiction as set out in the Court of Appeal in Rep V Juridical Enquiry Into The Goldenberg Affair Ex Parte Mwalulu, Hmisc 1279/04. The Court stated;
We also apply the maxim ex nihilo nihil fit- “out nothing comes nothing”. We hold that nullities are not covered by the six months’ limitation both on the wording of the rules and as a matter of principle due to the nature of nullities. We further hold in line with the Githunguri vs. Republic [1986] KLR 1 that this court has inherent powers to exercise jurisdiction over tribunals and individuals acting in administrative or quasi judicial capacity and we would invoke this jurisdiction to quash nullities and illegalities.”
99. The court held that the 6 months limitation only applies to judgments, orders, decrees, convictions or other proceedings of an inferior court and that the time limit under S 9 (3) (O 53 Rule (2) ) does not include anything covered by the ultra vires rule or nullities or decisions made without jurisdiction.
100. The 2nd Respondent claim as at the time of filing the suit was a total of Kshs. 24,480.000.00 being, the Claimed contract sum of Kshs.18 Million plus Nine (9) months’ interest a total of Kshs. 6,480,000.
101. The amount that was claimed by the 2nd Respondent at the time of filing its claim having been over and above the prescribed Kshs. 20 Million limit fell well outside the jurisdiction of the Chief Magistrate court and I so hold.
Disposition:
102. The application lacks merit.
Order;
The application dated 19th July, 2023 is dismissed with costs.
Dated, signed and delivered at Nairobi this 8th Day of April 2024
……………………………………
J. CHIGITI (SC)
JUDGE