[2022] KEHC 17106 (KLR)

Independent Tobacco Eze v Muse-Af Enterprises Co Ltd (Civil Case 46 of 2010) [2022] KEHC 17106 (KLR) (13 May 2022) (Ruling)

Neutral citation: [2022] KEHC 17106 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Case 46 of 2010

MN Mwangi, J

May 13, 2022

Between

Independent Tobacco Eze

Plaintiff

and

Muse-Af Enterprises Co Ltd

Defendant

Ruling

1. On July 30, 2019, the law firm of AB Patel & Patel Advocates filed a Notice of Motion application dated July 29, 2019 under the provisions of Sections 1A, 1B, 3A and 99 of the Civil Procedure Act, 2010, Order 45 Rule 1(1)(a) and Order 51 of the Civil Procedure Rules, 2010and any other applicable laws seeking the following orders–i.Spent;ii.That the order of this Honourable Court on costs payable to Dr Khaminwa, Advocate of Kshs. 30,000/= by the firm of M/s AB Patel & Patel Advocates made on June 17, 2019 be reviewed and/or set aside; andiii.That costs of this application be provided for.

2. The application is anchored on the grounds in support thereof and the affidavit sworn by Sanjeev Khagram on the 29th day of an undisclosed month in the year 2019.

3. In the said affidavit it was deposed that the application herein arises out of the decision/order made by the High Court on June 17, 2019 directing his firm to pay Dr Khaminwa costs of Kshs. 30,000/= on account of costs of the day. He urged this Court to set aside the said orders because-i.The matter came up for mention on June 17, 2019 for purposes of taking further directions on the status of the defendant company or taking a hearing date for the defence after the defendant had clarified of its existence or non-existence;ii.At the time of mentioning of this matter, he had not established the position of his client but had instructed his Assistant, Mr Ondego Advocate, to seek a hearing date with the rider that he (Mr Khagram) would continue to establish the status of his client, of which he had established that the defendant company was dissolved. He annexed a copy of a Gazette Notice as annexure SK-1; andiii.That prior to the said mention, Dr Khaminwa did not make any known contact with him as was alleged on June 17, 2019, despite the fact that he had Mr Khagram’s personal mobile number.

4. Mr Khagram deposed that it was shocking for him to learn of Dr Khaminwa’s aspersions against him and his firm with the aim of unjustly enriching himself on account of costs, when he actually suffered no loss as the matter proceeded as was directed on April 30, 2019 by fixing the suit for hearing of the defence case as was proposed by Mr Ondego.

5. Mr Khagram denied having any knowledge of Dr Khaminwa’s search for him prior to the mention date and the claim that Dr Khaminwa failed to get hold of him. He deposed that Dr Khaminwa did not need to make a special trip from Nairobi for purposes of taking a hearing date as alleged.

6. Mr Khagram contended that Dr Khaminwa should not have been awarded costs on June 17, 2019 or any other costs for whatever reason as on the said date as against Mr Khagram’s law firm personally. It was deposed by Mr Khagram that other than the aspersions cast by Dr Khaminwa, no plausible demonstration of loss suffered by him was ever shown as a result of his attendance, when he was actually required to do so by this Court so as to take a common direction on the way forward in this matter.

7. Mr Khagram averred that Dr Khaminwa’s Assistant, Mr Gathu asked for his mobile number on Friday June 14, 2019 from the Mombasa Law Society (MLS) WhatsApp group and he responded by sending a note. That they communicated on Saturday June 15, 2019 on WhatsApp messages and Mr Gathu told him that Dr Khaminwa was looking for him. That he tried to call Dr Khaminwa over the weekend on his mobile phone number but he could not reach him. Mr Khagram attached a copy of the print outs relating to the WhatsApp communication marked as SK-2.

8. Mr Khagram contended that there was an error apparent on the face of the record and that the firm of AB Patel & Patel stood to suffer prejudice and substantial injustice. The applicant prayed for a review of the orders made on June 17, 2019.

9. It is worth noting the Dr Khaminwa did not file any response to the application herein. Although Counsel had expressed the wish to file written submissions, they changed their minds and I hasten to add, rightfully so as there would have been nothing much to submit on as the ruling herein all boils down to the proceedings of June 17, 2019 and the applicable law on applications for review.

Determination 10The issue for determination is if this Court should review the order of June 17, 2019 directing the law firm of AB Patel & Patel Advocates to personally bear the costs of the said date on behalf of the plaintiff’s Counsel.

11. The case herein was filed in the year 2010 and has gone through the hands of several Judges since then. The hearing of the case commenced before this Court on March 15, 2018. One witness testified on the said date. On October 18, 2018, two witnesses testified on behalf of the plaintiff.

12. Things came to a head on December 10, 2018 when the 1st defence witness was testifying. When being cross-examined DW1, Andom Gebremariam stated that he was a director of the defendant before they dissolved it and that the company did not exist as at the time he was testifying. He indicated that he could not recall the year when the company was dissolved and that it used to operate in Kenya. He also stated that he used to attend board meetings of the defendant before it was dissolved.

13. At that point, Dr Khagram stated that there seemed to be no case since the company was dissolved.

14. Mr Khagram’s response was that he needed time to get further instructions from his client, who had informed him that there were three entities that go by the name Muse-AF-Enterprises Co Ltd, and that one is based in Kenya, one in Uganda and the third one in South Sudan. This Court gave the defendant’s Counsel time to get further instructions and the case was fixed for March 5, 2019. The case was not heard on the said date but came up for mention on April 30, 2019 when Mr Ondego for the defendant stated that he needed time to counter check when the defendant ceased business. He prayed for a mention date in 3 weeks’ time. On the said date, this Court gave directions to the effect that the case would be mentioned on June 17, 2019 and that would be the last mention on the issue that the defendant was supposed to sort out.

15. On June 17, 2019, Mr Ondego once again informed this Court that they had still not found out the correct position with regard to the existence or non- existence of the defendant company. He prayed for a hearing date.

16. On that day, Dr Khaminwa stated that he did not understand what the difficulty was in ascertaining that the company was in dissolution and that he had encountered great expense to come to Court. He also stated that was the 4th time that the case was being mentioned on the same issue. He expressed the view that what was happening was dishonourable and that this Court should be treated with respect. He stated that he had called the law firm of AB Patel & Patel several times the previous week and that he had been told that Mr Khagram was in a meeting but he did not get a return call from the said law firm. He prayed for the application by the defendant to be dismissed as this Court has inherent powers to do so.

17. Mr Ondego responded by stating that he was not aware that Dr Khaminwa had called their law firm and that Mr Khagram had not called him back. He stated that time had caught up with them. He apologized for not measuring up to the Court’s expectations.

18. This Court then observed and directed as follows –“It is apparent that the law firm for AB Patel & Patel is dragging this case by failure to comply with the Court directives of December 10, 2018. It is now 6 months down the line and this case seems to have been forgotten by the said law firm. The law firm of A. B. Patel & Patel Advocates shall pay the costs incurred by Dr Khaminwa to attend Court today assessed at Kshs. 30,000/=. The said costs shall be paid by the latest June 21, 2019. The defence case will be heard further on July 30, 2019 at 11:30 a.m.”

19. Come the July 30, 2019, Mr Khagram informed the Court that the defendant had filed an application seeking a review of the orders of June 17, 2019 requiring the law firm of AB Patel & Patel to pay Kshs. 30,000/= to Dr Khaminwa as his costs of that day.

20. In the application filed by the said law firm dated July 29, 2019, the applicant relies on the provisions of Section 99 of the Civil Procedure Act. The said provisions state as follows –“Clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omissions, may at any time be corrected by the court either on its own motion or on the application of any of the parties.”

21. In this matter, the defendant’s Counsel misapprehended the basis upon which this Court ordered the law firm of AB Patel & Patel Advocates to pay costs of Kshs. 30,000/= to Dr Khaminwa. This Court made the said order conscientiously suo moto after the defendant’s Counsel time and again requested for time to find out when the defendant was dissolved but never brought back any concrete feedback.

22. On April 30, 2019, the Court stated that would be the last mention on the issue that the defendant was supposed to sort out. Come the 17th of June, 2019, there was still no feedback on the issue from the defendant’s Counsel despite 6 months having been spent on the same issue of the defendant’s Counsel seeking time to find out when the defendant was dissolved.

23. The imposition of costs on the defendant’s Counsel was not an error apparent on the face of the record and is not a matter for review under Section 99 of theCivil Procedure Act. In any event, Section 1A(1) of theCivil Procedure Act provides for the overriding objective of the said Act as being to facilitate the just, expeditious, proportionate and affordable resolution of Civil disputes governed by the Act. In this case, it is apparent that there was delay by the defendant’s Counsel in availing critical information which would determine the trajectory the case herein would take.

24. Section 1A(3) of the Civil Procedure Act provides that a party to civil proceedings or an Advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to participate in the process of the Court and to comply with the directions and orders of the Court. As said earlier, despite the requests made by the defendant’s Counsel to be given time on 2 occasions to give feedback on the dissolution or non – dissolution of the defendant Company no cogent information was given to the Court by June 17, 2019 and that is how the issue of the costs that were awarded to Doctor Khaminwa came in.

25. The averments made by Mr Khagram in his affidavit in support of the application are also not applicable to the circumstances under which he seeks review.

26. This Court however notes that Dr Khaminwa did not file a replying affidavit to oppose the application dated July 29, 2019 and filed on July 30, 2019. That being the case, the inference to be drawn is that he conceded to the application. In the case of Kennedy Otieno Odiyo & 12 others vs Kenya Electricity Generating Company Limited [2010] eKLR, a replying affidavit was not filed and the Court held-“………………………….. Thus what was deponed to was not countered nor rebutted by the respondents. It must be taken to be true. In the absence of the replying affidavit rebutting the averments in the applicant’s supporting affidavit, means that the respondents have no claim against the applicant…..”

27. Due to the fact that Dr Kaminwa did not file a replying affidavit to oppose the application herein, I hereby set aside the order requiring the law firm of AB Patel & Patel & Co Advocates to pay costs of Kshs. 30,000/= to Dr Khaminwa.

27. Dr Khaminwa urged this Court to give directions on the way forward in this case. Having found that the defendant company was dissolved on August 21, 2012, when this case was still pending in Court, it is the plaintiff’s responsibility to consult his Advocate on how best to progress this case or on the cause of action to take. There shall be no order for costs for the application dated July 29, 2019.

DELIVERED, DATED and SIGNED at MOMBASA on this 13TH day ofMAY, 2022. Ruling delivered through Teams Online Platform.NJOKI MWANGIJUDGEIn the presence of-No appearance for the plaintiffMr Ondego for the defendantMr Oliver Musundi – Court Assistant.Page 4 of 4 NJOKI MWANGI, J.