[2022] KEHC 13917 (KLR)

Inter Tropical Timber Trading Ltd v Kenya Power and Lighting Co. Ltd (Civil Suit E049 of 2018) [2022] KEHC 13917 (KLR) (Civ) (7 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13917 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Civil

Civil Suit E049 of 2018

A Mshila, J

October 7, 2022

Between

Inter Tropical Timber Trading Ltd

Plaintiff

and

Kenya Power and Lighting Co. Ltd

Defendant

Ruling

1. The Application is a Notice of Motion dated February 23, 2022 was brought under Order 50 Rule 6, Order 8 Rule 3 & 6 and Order 51 Rule 1 of the Civil Procedure Rules, 2010, Section 1, 1A, 1B, 3A and Section 95 of the Civil Procedure Act for orders that;a.The Court to enlarge time for the Plaintiff to comply with orders made on October 13, 2021 (Hon GW Ngenye Macharia, J) allowing the Plaintiff to file an amended Plaint by a further seven (7) days.b.The court to deem the further further amended plaint filed in this court on February 28, 2022 as properly on record.c.The defendant be granted a corresponding leave to file a further amended defense if it deems fit.d.The costs of this Application be in the cause.

2. The Application was supported by the sworn Affidavit of Geoffrey Ng’ang’a Kariuki.

3. The defendant filed grounds of opposition dated March 30, 2022 on the grounds that;a.The Application contains material misrepresentation and contradiction that negate the genuineness and veracity thereof leaving the only rationale to be that there is mischief abound.b.The deponent of the Supporting Affidavit contradicts himself wherein paragraph 3 he alleges that he only recently became aware of the ruling of the October 13, 2021 while at paragraph 9 he alleges that he was aware that the matter was coming up for a ruling but his various attempts to get an outcome from both firms of advocates were in vain.c.Further contradiction is demonstrable where at paragraph 6, that the Plaintiff avers that it instructed the firm of MM Muriuki & Company Advocates to work alongside that of TM Kuria Advocates, while at paragraph 9 it is alleged that the firm of MM Muriuki & Company Advocates carried out proceedings without the Plaintiff’s knowledge.d.The import and culmination of such contradiction and varied statement is that the Plaintiff is fraught with material non-disclosure, misrepresentation of facts and that the Application is mischievously aimed at circumventing the consequence of disobedience and/or failure to comply with court orders.e.It is trite and settled at law that a suit belongs to the litigant and not to the advocate. Therefore, in this instance, the Plaintiff ought to have carried out due diligence, in terms; personally perusing the court record and establishing the outcome of the ruling without any undue delay if at all, as alleged, it could not obtain the same from the firm of advocates appearing on its behalf.f.Further, it is trite and settled at law that the Plaintiff/litigant is obliged and retains the duty to take care of its suit; it is therefore its responsibility to ensure that it is timeously prosecuted and that orders of the Court are complied with within the period allowed.g.The responsibility and duty to pursue the prosecution of a suit belongs to the litigant and not the advocate; failure to comply with court orders cannot be simply apportioned to the advocates and in vindication of the Plaintiff/litigant.h.Further, as the deponent of the Supporting Affidavit admits knowledge of the ruling of this matter, it is legitimately expected that the Plaintiff ought to have conducted due diligence to obtain the result and/or peruse the court proceedings/record not more than three (3) days from when the ruling was scheduled and delivered.i.In this instance, the Plaintiff demonstrates immense indolence by, now, moving the Court close to five (5) months from when the order of the Court ought to have been complied with; these comprises of a delay of on or about one hundred and fifty (150) days.j.Worthy of note, delay in prosecution of this matter has been occasioned by the Plaintiff on account of constant changing of the firm of advocates appearing on its behalf and by numerous applications for amendment of pleadings upon these firms coming on record.k.The Plaintiff has failed to discharge its burden of proof, in terms:i.Demonstration that it recently became aware of the ruling,ii.Demonstration that it made consistent follow up on the outcome of the ruling.iii.Demonstration that it was being shifted between the firms of advocates appearing on its behalf when it inquired of the outcome of the ruling.iv.Demonstration that there was cross-purpose between the firms of advocates appearing on its behalf & demonstration that there was perusal of the court file and application for the ruling.l.Arising from all the above, it is resoundingly distinct that purpose of the recent change of advocates is intended and/or engineered to circumvent the consequence of failure to adhere to the orders of the Court, in terms; filing of the further, further, further amended Plaint within seven (7) days of the 13th October, 2021. m.The present Application is mischievous, comprises of material misrepresentation and an abuse of court process noting that the various applications for amendment and changes of firms of advocates began on or about the year 2019. n.It is prejudicial and grievous miscarriage of justice for the Plaintiff to remain indolent in prosecuting this matter thereby denying the Defendant expeditious conclusion hereof; especially noting that failure to abide by the Court’s orders is occasioned by the Plaintiff.

Applicant’s case 4. The Applicant stated that vide a ruling delivered on October 13, 2021, the court granted the plaintiff leave to amend the further amended plaint and which was to be done within 7 days.

5. The Plaintiff has recently learned of the ruling and the fact that its erstwhile advocates did not comply with the orders. The Plaintiff has established that the 2 firms representing it then began working at cross-purpose to the detriment of the Plaintiff. The 2 firms of advocates failed to advice the Plaintiff of the outcome of the ruling despite several follow ups.

6. The Plaintiff has now appointed a new advocate and is desirous of amending the Plaint as originally conceived. The Applicant added that the Respondent will not suffer any prejudice.

Respondent’s Case 7. Contrary to the provisions of Order 9 Rule 7 of the Civil Procedure Rules, 2010, the firm of Gikenye Mugo & Rienye Advocates failed and/or neglected to file a notice of appointment of advocates; therefore, it is our argument, on behalf of the defendant, that the said firm cannot purport to have any authority and/or instruction to act on behalf of the plaintiff/applicant a valid and legal notice of appointment of advocates.

8. It was the Respondent’s case that the Locus Classicus on jurisdiction is the vastly celebrated authority of Owners of the Motor Vehicle Lillian “S" wherein the courts determined that jurisdiction is everything and that once a court finds that it does not have it, it ought to down its tools and not move any step further.

9. It was the Respondent’s submission that in order for the Court to seize jurisdiction to properly and regularly adjudicate upon the impugned Application, then, it ought to abide by tenets of procedural substance; thereby, being placed before the Court pursuant to the clear procedure of appointment of an advocate as provided under Order 9 Rules 1 & 7 of the Civil Procedure Rules.

10. It is undisputed that where an Application, appearance and/or pleading is illegally before a court, if it takes it upon itself to exercise a jurisdiction which it does not possess, then the decision therein shall amount to a nullity. Consequently, jurisdiction must be acquired before a decision and/or judgment is issued and such jurisdiction flows from either the Constitution, legislation, both or by principles laid out in judicial precedent.

11. The Respondent beseeched the Court to find that it does not have jurisdiction to consider and/or determine the impugned Application by reason that it has been placed before it in abridgement of that which has been laid down under Order 9 Rules 1 & 7 of the Civil Procedure Rules, 2010.

12. The Respondent went on to submit that in stare decisis and in compliance with Article 10 of the Constitution of Kenya, 2010, the authority of the Court cannot be invoked upon a suit with which it does not have jurisdiction by reason that it is fatally defective and procedurally flawed; therefore, the orders cannot obtain as the impugned application is in itself null and void ab initio.

13. Determination of the merit of a case commences by an analysis of whether the suit, appearance and/or application are in themselves properly before the Court and whether the said court has authority to seize and adjudicate upon it.

14. For the Plaintiff/Applicant to properly obtain the orders sought, it ought to have been, firstly, established that the purported firm of advocates has been duly appointed as its authorized agent to appear on its behalf before the Court; and in this case it has not.

15. Further, there still remains fundamental flaws, that negate the validity and genuineness of the Plaintiff/Applicant, in the allegations put forth the Plaintiff/Applicant has still failed to demonstrate, through material of probative value, before the Court that the only manner it became aware of the Order of October 13, 2021 was through perusal; no receipt for payment of perusal has been attached, therefore, this allegation must fail,

16. It is therefore the Respondent’s submission that void of verification and proof of the itemized reasons hereinabove, the allegations and the impugned Application filed on behalf of the Plaintiff/Applicant ought not to be considered and/or determined by reason of breach of procedural substance; thereby, resulting in an illegality, thus.

17. Further, that it is imperative, for qualitative dispensation of justice, that the rules of procedure be strictly adhered to pursuant to the provisions of Article 27 (1) of the Constitutionof Kenya.

18. In the alternative and without prejudice to the foregoing, the Defendant/Respondent suffers immense prejudice by being denied expeditious conclusion of this suit as the Plaintiff/Applicant has remained bombarding it with numerous amendments, changes in representation and failure to abide by timelines set by the Court; acts and/or omissions which supply the outcome of this matter being protracted.

19. The respondent asserted that by these acts and omissions, the plaintiff/applicant countermands the spirit and intent of the oxygen principles wherein it is intended that matters ought to be dispensed with in a just, expeditious, proportionate, affordable and cost effective manner to the prejudice and peril of the defendant/respondent.

Issues for determination 20. After considering the Application, Response and the written submissions by the respective parties; the Court frames the following issues for determination:a.Whether the Preliminary Objection is merited?b.Whether the Court should enlarge time for the Plaintiff to file a Further Further Amended Plaint?

Analysis 21. A preliminary objection which is supposed to assume the facts as pleaded are correct, as was held in the celebrated case of Mukhisa Biscuit Manufacturer Ltd v Westend Distributers Ltd [1969] EA 696 as per law JA, thus:“...so far as I am aware, a preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary objection may dispose of the suit.Sir Charles Newbold P in that case stated: -“...A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”

22. The Preliminary Objection as raised lacks merit as the firm of Gikenye Mugo & Rienye Advocates filed a Notice of Change of Advocates dated January 28, 2022.

23. The principles governing amendment of pleadings were well laid down in the case of AAT Holdings Ltd v Diamond Shields International Ltd[2014] eKLR as follows;i.The proposed amendment is necessary for determining the real question in controversy. It is not immaterial or useless or merely technical.ii.There has been no undue delay in making the application.iii.The amendments does not introduce a new or inconsistent cause of action which would change the action into one of a substantially different character, which can only be more conveniently made the subject of a fresh action. The documents which support the amendment of the impugned averments in the plaint, clarifies the mix-up, are part of the record and relate to the same facts on which the cause of action is based.iv.There is no vested interest or accrued legal rights which will be affected; andv.The amendment does not occasion prejudice or injustice to the other side which cannot be properly compensated in costs.

24. From the court record it is clear that the Plaintiffs/Applicants were granted leave to file the Amended Amended Plaint within 14 days from February 24, 2021, but they did not comply. They then filed this Application on April 13, 2021 more than one month down the line. Counsel for the Applicants’/Plaintiffs’ attributed this delay to inadvertent mistake on his part. The Respondents on their part argued that the delay in filing of the Application was inordinate, unexplained and unreasonable therefore undeserving of favourable exercise of the courts’ discretion.

25. The statutory provision on failure of a party to amend despite being granted leave is Order 8 rule 7 of the Civil Procedure Rules 2010which provides as follows; -“Where the court has made an order giving any party leave to amend, unless that party amends within the period specified or, if no period is specified, within fourteen days, the order shall cease to have effect, without prejudice to the power of the court to extend the period.”

26. It is also important to note that Section 95 of the Civil Procedure Act gives the court discretion to enlarge time fixed for doing any act even though such period may have lapsed.

27. This court is aware that its jurisdiction to grant leave to parties to amend their pleadings is unfettered. However, the discretion to grant leave to a party to amend its pleading must be with the objective of aiding the court to determine the real issues in controversy.

28. This Court takes note that the Applicant had been granted leave to Amend its Further Amended Plaint on October 13, 2021 within 7 days and now seeks to extend the same. The present Application was brought on February 23, 2022 which is a 4 months’ delay.

29. Although the delay is inordinate, in the exercise of the Court’s discretion the Application is allowed as the amendments sought relate to issues that are material to this suit, and will in any case avoid multiplicity of suits.

30. In view of the foregoing this Court grants orders sought in the Application thus that time be and is hereby enlarged for the Plaintiffs/Applicants to file an application for further amendment and that the further amended plaint filed and served herein be and is hereby deemed as having been properly filed.

31. In the interests of justice, the Respondent should be accorded a chance to file the amended defence as it will assist the court in determining the real question in controversy between the parties following the amendment to the Plaint.

32. The Application is allowed bearing in mind the principle that amendments sought before hearing ought to be freely allowed if they can be made without injustice to the other side, and there is no injustice if the other side can be compensated by costs. In the present case, no injustice will be occasioned to the Respondents as, in additional to costs, they will also be at liberty to file an amended defence.

Findings and determination 31. For the foregoing reasons, this court makes the following findings and determination;(i)The Preliminary Objection on jurisdiction is found to be devoid of merit and it is overruled;(ii)The application is found to be with merit and it is hereby allowed;(iii)Time be and is hereby enlarged for the Plaintiff to comply with orders made on October 13, 2021 (Hon. G.W. Ngenye Macharia, J) as she then was allowing the Plaintiff to file a further further amended Plaint by a further seven (7) days from the date hereof;(iv)The defendant be and is hereby granted corresponding leave to file a further amended defence if it deems fit within seven (7) days of service;(iv)The Applicant shall bear the costs of this application assessed at Kshs 20,000/- payable before the next mention date;(vi)Mention on October 25, 2022 before the Deputy Registrar for case management.Orders accordingly.

DATED AND DELIVERED ELECTRONICALLY AT NAIROBI THIS 7TH DAY OF OCTOBER, 2022. HON. A. MSHILAJUDGEIn the presence of;Mugo for the Plaintiff/ApplicantOndari holding brief for Muyuri for the RespondentLucy----------------------------Court Assistant