[2023] KEHC 25732 (KLR)

Mzuri Sweets Limited v Rameshwar Distributors Limited (Civil Case 18 of 2019) [2023] KEHC 25732 (KLR) (21 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25732 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Case 18 of 2019

DKN Magare, J

November 21, 2023

Between

Mzuri Sweets Limited

Applicant

and

Rameshwar Distributors Limited

Respondent

Ruling

1. This Rulings is in respect to two applications. The first in line is dated 21/6/2023. The second one is for cross examination of the directors on means to settle the decretal sum. The 1st one seeks the following orders: -a.That Rohit Zaverchad Shah, Bhavin Rogit Shah, Pradipkumar Bhagwanji Shah and Atul Bhagwanji Shah, being directors of the Defendant/Judgment Debtor be orally examined as to whether the judgment debtor has any and/or what property and/ or means of satisfying the decree herein.b.That the court make orders for the attendance in court and examination of Rohit Zaverchad Shah, Bhavin Rogit Shah, Pradipkumar Bhagwanji Shah and Atul Bhagwanji Shah, being directors of the Defendant/Judgment Debtor for production of nay books of accounts or documents, for purposes of satisfying the decree herein.c.That in default of the said directors complying with the above orders, this Honourable Court be pleased to order that the said directors be held personally liable to pay the plaintiff the decretal sum and costs herein in the sum of Kshs. 48,773,480. 00 plus accruing interest.d.That the costs of this Application be provided for.

2. The prayer for cross examination of the process Server is futile. It is work without benefit. The affidavit of 14/6/2019 does not answer any of the questions in issue.

3. In the submissions filed by the plaintiff service relied on is not that of 14/6/2019. The courts do not engage in academic or mort questions. The question is why the Process Server could not find the defendants is vain. In the case of Samuel Kimani & another v Dominic Kamiri Karanja [2022] eKLR, the Court, Justice C.Meoli addressed the issue of mootness as doth:-“11. The Court has considered the parties’ submissions above. Black’s Law Dictionary Tenth Edition defines the term “moot” as having “no practical significance; hypothetical or academic “and a “moot case” as a “matter in which a controversy no longer exists; a case that presents only an abstract question that does not arise from existing facts or rights”. I agree entirely with the sentiments of Mativo J in Evans Kidero v Speaker of Nairobi City County Assembly & Another (2018) eKLR, where the learned Judge stated inter alia that:“A matter is moot if further legal proceedings with regard to it can have no effect, or events have placed it beyond the reach of the law. Thereby the matter has been deprived of practical significance or rendered purely academic. Mootness arises when there is no longer an actual controversy between the parties to a court case, and any ruling by the court would have no actual, practical impact…No court of law will knowingly act in vain. The general attitude of courts of law is that they are loathe in making pronouncements on academic or hypothetical issues as it does not serve any useful purpose. …A suit is academic where it is merely theoretical, makes empty sound and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to practical situations of human nature and humanity...A case or issue is considered moot and academic when it ceases to present a justiciable controversy by virtue of supervening events, so that an adjudication of the case or a declaration on the issue would be of no practical value or use. In such instance, there is no actual substantial relief which a petitioner or applicant would be entitled to, and which would be negated by the dismissal of the case. Courts generally decline jurisdiction over such cases or dismiss them on grounds of mootness…”

4. In the submission the plaintiff raises 3 issues: -a.The explanation for the delay.b.Meritc.Prejudice on the defendant.

5. They rely on the case of Wacura Karani versus Bildad Wachira (2019) eKLR.Wachira Karani versus Bildad Wachira (2016) eKLR as follows;“The test to be applied is whether the Defendant honestly and sincerely intended to remain present when the suit was called for hearing. Sufficient cause is a question of fact and the Court has to exercise its discretion in the varied and special circumstances in that case at hand. There cannot be a straight-jacket formula of universal application. Thus, the Defendant must demonstrate that he was prevented from attending court by a sufficient cause.”

6. In the case of Wachira Karani vs Bildad Wachira [2016] eKLR J Mativo stated thus:-“I find that the reason given by the applicant for failing to attend court is candid and excusable and that this is a proper case for the court to exercise its discretion in favour of the applicant. In this regard, I find useful guidance in the court of appeal decision in the case ofRichard Nchapai Leiyangu vs IEBC & 2 others [2013] eKLR where the court expressed itself as follows:-“We agree with the noble principles which go further to establish that the courts’ discretion to set aside ex parte judgement or order for that matter, is intended to avoid injustice or hardship resulting from an accident, inadvertence or excusable mistake or error but not to assist a person who deliberately seeks to obstruct or delay the course of justice”

7. They state that P. O Box 392 - 00600 is the address on various delivery notes. It is also said to be the same address notice of entry of judgment was served, which is admitted to have been read.

8. The defendant was thus aware of the suit since 2019, only to be woken up by execution 3 years later.

9. They state that in the case of The Defendant is therefore not worthy of the discretion of this Court. We place reliance on the case of Vivo Energy Kenya Limited (Initial Party Kenya Shell Limited) versus George Karunji (2014) eKLR in which the Court held;“Magunga General Stores versus Pepco Distributors Limited (1987)2 KAR Platt, JA held as follows; “First of all a mere denial is not a sufficient defense in this type of case. There must be some reason why the Defendant does not owe the money. Either there was no contract or it was carried out and failed. It could also be that payment had been made and could be proved. It is not sufficient therefore simply to deny liability without some reason given.

10. They state that part of the decretal sum has already been paid. Prejudice is that the parties will deny the plaintiff the fruits of their judgment.

11. The Applicant states as doth: -“Halsbury’s Law of England, 4th Edition. Vol. 37 page 330 and 332, where the principles upon which stay of proceedings may be granted are summarized as follows:"The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court's general practice is that a stay of proceedings should not be imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to continue. This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases

12. In the case of Global Tours & Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000, the court stated as doth regarding stay” –“As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice… the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the Court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously” The Court then dOn the aspect of stay rely on the case of Ezekiel Mule Musembi vs. H. Young and Company( E.A) Limited(2019) eKLR, where the court stated as doth:-“This jurisdiction is meant to avoid a waste of valuable judicial time: prevent the court from duplication of efforts and prevent multiplicity of suits and applications being filed and where if the stay is not granted and defendant were to succeed it would have rendered the appeal nugatory. In such applications the court aims at ensuring that the object of the application is not rendered nugatory and that substantial loss and irreparable harm is not suffered by the applicant once the Plaintiff proceeds with the suit and the appeal succeeds. Obviously the decision whether or not to grant stay of proceedings being discretionary, the application must be made without unreasonable delay. Whereas I agree that delay is neither the sole factor nor the predominant factor to be considered, lam convinced that delay is a factor that ought to be taken into account" Certain things were sold as shown on the certificate of sale. The amount on application for execution filed is Kshs. 50,427,264/=. The decree was for Kshs. 24,963,253. 08.

13. In the circumstances. I note that the Applicants were aware of the suit but only sat on their laurels till execution occurred. Not just proselclamation but proclamation attachment and sale. This is a party who does not appear to have a defence to the claim. None has been proffered. For debts, it is not enough to deny order 2 Rule 4(1) Provides as doth:-“Matters which must be specifically pleadedA party shall in any pleading subsequent to a plaint plead specifically any matter, for example performance, release, payment, fraud, inevitable accident, act of God, any relevant Statute of limitation or any fact showing illegality—(a)which he alleges makes any claim or defence of the opposite party not maintainable;(b)which, if not specifically pleaded, might take the opposite party by surprise; or(c)which raises issues of fact not arising out of the preceding pleading.

14. In the case of Raghbir Singh Chatte v National Bank of Kenya Limited [1996] eKLR, the Court of Appeal stated as doth: -The learned judge in refusing to set aside the ex parte judgment dwelt mainly on the lack of merit in the defence. In the subsequent appeal to this court, it was held that a mere denial is not a sufficient defence in the type of action that had been brought against the defendant. In the judgment of this court delivered by Platt, J. A. as he then was, it is clearly stated as follows:“First of all a mere denial is not a sufficient defence in this type of case there must be some reason why the defendant does not owe the money. Either there was no contract or it was not carried out and failed. It could also be that payment had been made and could be proved. It is not sufficient therefore simply to deny liability without some reason given.”Thus is Maguga General Stores this court authoritatively enunciated the principle that in an action for a debt or liquidated demand a mere denial or general traverse will not do for all purposes. Applying the same principle a defence in an action of that type that is a mere general traverse cannot be and is not a sufficient defence and also discloses no reasonable defence for the purposes of 06 r 13(1)(a). In 0 6 r 9, it is provided that every allegation made in a plaint which it is not intended to be admitted, shall not be specifically traversed in defence and a general denial shall not be a sufficient denial of them. The following comments on the corresponding English rule namely 0 18 r 13, which appear in the Supreme Court Practice 1993, vol. 1 part 1 p.323 para 18/13/1, also clear supports and view that in a suit for a liquidated demand where the facts are clearly set out in the plaint as in the present appeal, a general denial is of no use and demonstrates not only a reprehensible lack of candidness in defence but also that the defence discloses no reasonable defence which can be the basis for an application to strike out the defence either under 0 6 r 13(1)(a) or 0. 35:

15. In the circumstances I do not see any triable issue raised in the proposed defence. The service was regular and was acknowledged. The court’s jurisdiction in setting aside a regular judgment is securely limited. It is only upset by a trial defence and an application made without un due delay. In the circumstances years’ delay. The misery was compounded by not have a triable defence.

16. There is considerable difficulties in setting aside a regular judgment without a trialbe issue. In the case of Mureithi Charles & another v Jacob Atina Nyagesuka [2022] eKLR, the court, G V Odunga as then he was stated as doth: - 2016)“27. InWachira Karani vs. Bildad Wachira (eKLR as was quoted in the case ofDavid Gicheru v Gicheha Farms Limited & another [2020] eKLR the Court held that:-“The fundamental duty of the Court is to do justice between the parties. It is in turn, fundamental that to that duty, those parties should each be allowed a proper opportunity to put their cases upon the merits of the matter…”28. In considering whether or not to set aside a judgement, a judge has to consider the matter in the light of all the facts and circumstances both prior and subsequent and of the respective merits of the parties before it would be just and reasonable to set aside or vary the judgement, if necessary, upon terms to be imposed. Hence the justice of the matter and the good sense of the matter, are certainly matters for the judge. It is, as I have held elsewhere in this ruling an unfettered discretion, although it is to be used with reason, and so a regular judgement would not usually be set aside unless the court is satisfied that there is a defence on the merits, namely a prima facie defence which should go to trial or adjudication. The principle obviously is that, unless and until the court has pronounced a judgement upon the merits or by consent it is to have the power to invoke the expression of its coercive power, when that has been obtained only by a failure to follow any of the rules of procedure. It is then not a case of the judge arrogating to himself a superior position over a fellow judge, but being required to survey the whole situation to make sure that justice and common sense prevail. Indeed, there is no parallel with an appeal.

17. The lethargy shown by the plaintiff defendant is of another low. It is disastrous and a nadir in practice of law. I am not persuaded that I should not drive the applicant from the perch he is in. However ever mercy has its limits. In D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another [1980] eKLR, the court of Appeal stated as doth: "That is a very strong –“power, and should only be exercised in cases which are clear and beyond all doubt...the court must see that the plaintiff has got no case at all, either as disclosed in the statement of claim, or in such affidavits as he may file with a view to amendments."per Lindley L.J. ibi, p. 602. “It has been said more than once that rule is only to be acted upon in plain and obvious cases and, in my opinion, the jurisdiction should be exercised with extreme caution."Per Lord Justice Swinfen Eady in Moore v. Lawson and Another(supra) at p. 419. “It cannot be doubted that the court has an inherent jurisdiction to dismiss an action which is an abuse of the process of thecourt. It is a jurisdiction which ought to be very sparingly exercised. and only in exceptional cases. I do not think it sexercise would be justified merely because the story told in the pleadings was highly improbable, and one which it was difficult to believe could be proved". per Lord Herschell inLawrence v. Lord Norreys, 15. A.C. 210 at p. 219. ”

18. It serves no purpose to allow filing of defence, which shall be struck out shortly thereafter. It is better to save the Applicant from the ignominy of the Applications incompetence. It is therefore not merited. The Applications dated 21/6/2023 is therefore dismissed with costs of 20,000/=.

19. As regards to the application dated 19/7/2023, it is an application in enforcement of the decree. It is an application that must be handled in stages.

20. The first stage is to ensure that parties who may be considered are heard before adverse orders are given. Though I may be minded to issue the proforma orders. It is hearsay that the application be served on the directions so that the move the journey together. I therefore hold the application in abeyance, save issue the following order: -a.An order is hereby issued directed at the following to attend court, pursuant to summons hereinafter issued to show books of accounts of documents recalled to the affairs of the defendant’s judgment debtor, that is Rohit Zaverchad Shah, Bhavin Rogit Shah, Pradipkumar Bhagwanji Shah And Atul Bhagwanji Shahb.The parties summonsed shall appear before me on 22/1/2024 for directions.

Determination 21. The application dated 21/6/2023 is dismissed with costs of 20,000/=a.The application dated 19/7/2023 shall be heard upon the directors, who will be summoned, have a chance to comment on it.b.Summons do issue to Rohit Zaverchad Shah, Bhavin Rogit Shah, Pradipkumar Bhagwanji Shah and Atul Bhagwanji Shah.c.Cost of the application dated 19/7/2023 do abide in the outcome thereofd.For avoidance of doubt, the Defendant shall bear Auctioneers charges.e.Direction after Ruling.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 21ST DAY OF NOVEMBER, 2023. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:-Benta Kamau for the Judgment debtorNo appearance for Decree holderCourt Assistant - BrianPage 4 of 4 M.D. KIZITO, J.