[2022] KEHC 26923 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JUDICIAL REVIEW DIVISION

JUDICIAL REVIEW MISC. APPLICATION NO.128 OF 2019

REPUBLIC..................................................................APPLICANT

VERSUS

THE PRINCIPAL SECRETARY

MINISTRY OF INDUSTRIALIZATION

AND ENTERPRISES DEVELOPMENT.....1ST RESPONDENT

THE HON.ATTORNEY GENERAL...........2ND RESPONDENT

DESIRAL (K) LTD.......................................................EX PARTE

RULING

1. The application before this court is the Ex parte Applicant’s application dated 24th March,2021 filed under Order 8 rules 3(1), (4) and 5 of the Civil Procedure Rules and Sections 3A and 95 of the Civil Procedure Act. The application seeks a raft of Orders as follows;

i. THATthis application be certified as urgent and service be dispensed with at the first instance and thereafter be heard on priority basis.

ii. THAT the Ex parte Applicant be granted leave to amend the Notice of Motion dated 16th December,2019 as set out in the Draft Amended Notice of Motion.

iii. THATthe Draft Amended Notice of Motion be deemed as duly filed and served.

iv. THATthe costs of this application be in the cause.

2. The Application is supported by the grounds on its face and verified by a Supporting Affidavit sworn by Jane Muasya, a director at Desiral (K) Limited, the Ex parte Applicant herein.

3. The genesis of the suit before this Court is Civil Case No.902 of 2017 before the Chief Magistrates Court where the Ex parte Applicant herein sought for payment of a balance of a contract sum amounting to Kshs. 4,350,143. 84/= plus interests and costs of the suit.

4. In the Court’s order of 29th November,2017, the 1st and 2nd Respondents herein were ordered to pay the sum of Kshs. 4,350,143. 84/= plus interest thereon from 3rd September,2012 and costs of the suit in the said case. It was deponed that according to the Certificate of Order against the Government issued on 11th April,2019, the amount owed to the Applicant as at then was Kshs. 7,379,871. 02/=.

5. The Ex parte Applicant aggrieved by the Respondents failure, to settle the decretal sum at the time filed a Notice of Motion application before this Court seeking Orders of Mandamus to compel them to clear the said amounts. During the filing of the said application the Respondents had not paid any part of the amount owing and as such what was sought by the Ex parte Applicant was the complete sum of Kshs. 4,350,143. 84 plus interest thereon from 3rd September,2012 and costs of the suit in Chief Magistrates Court Civil Case No.902 of 2017.

6. The deponent averred that the State Department for Industrialization paid the Ex parte Applicant a sum of Kshs. 4,275,141. 30/= which is less than the principal amount of Kshs. 4,350,143. 84/=. Further, that interest as well as costs of the suit remains outstanding.

7. It is urged that following the part payment by the respondents, circumstances have changed necessitating amendment of the ex parte applicant’s Notice of Motion dated 16th December, 2019 so as to take into account the part payment made and to claim interest on the principal sum from 3rd September, 2012 to 18th August, 2020 when the payment was made.

8. The application is opposed. In a replying affidavit, Annette Nyakora, counsel on record for the respondents has deponed that the application before court is frivolous, vexatious and an abuse of the court process. She states that the 1st respondent fully paid the ex parte applicant the sum of Ksh. 4,350,143. 80 and the sum of Ksh. 75,000 that the applicant is seeking to compel the respondents to pay was retained by KRA as withholding tax. A letter from the Ministry and a voucher confirming payment is exhibited. A copy of the withholding tax certificate is also tendered in evidence.

9. In a supplementary affidavit, Jane Muasya, a director of the applicant depones that even assuming that the Ksh. 75000 was accounted for as withholding tax, which is denied, this does not negate the fact that interest on the principal sum from 3rd September, 2012 to 18th June, 2020, the date of payment remains unpaid.

10. I have considered the application, the affidavit evidence and learned submissions by counsel. Of determination is whether the applicant has made out a case to warrant the grant of leave to amend the notice of motion dated 16th December, 2019.

11. Order 53 of the Civil Procedure Rules does not allow amendment of the Notice of Motion. Order 53 Rule 4 only allows the applicant to seek leave to amend the statement of facts and file further affidavit in support of the Motion. It is worthy of note that Judicial Review proceedings is a special jurisdiction of court. The Court of Appeal in Commissioner of Lands vs Hotel Kunste Ltd C.A No. 234 of 1995described it as a jurisdiction sui generis in which the civil procedure Act and the rules do not apply.

12. However, in the context of our present dispensation under the constitution of Kenya 2010, am of the view that where desirable the court ought to invoke its inherent powers to do justice to the parties. The cardinal consideration in the present application should be whether the amendment sought would prejudice or cause injustice to the other party. (See Republic vs Commissioner of Value Added Tax Ex Parte Iron Art Ltd (2012 ELR and Republic vs Betting Control and Licensing Board and 3 Others Ex Parte Standard Global East Africa Ltd.)

13. The applicant seeks to amend their Notice of Motion to claim sums they hold as still due despite the payment already made by the respondents. In opposing the application, the respondents maintain that the applicant was fully paid and the sum of Ksh. 75,000 claimed as due by the applicant was money held as withholding tax. The applicant contends that even if the sum of Ksh 75,000 was withheld as withholding tax, interest remains unpaid.

14. I have carefully considered the rival positions taken by the parties. I have had due regard to the record. Vide Notice of Motion dated 16th December, 2019, the applicant made a specific claim of Ksh 4,350,143. 84 plus interest thereon from 3rd September, 2012 and costs of the suit.

15. I have perused the draft amended Notice of Motion. The Applicant seeks Orders of Mandamus compelling the 1st and 2nd Respondents to pay a sum of Ksh. 75,002. 54 plus interest on the principal sum of Ksh. 4,350,143. 84.

16. There is evidence on record that the Sh. 75,002 claimed by the applicant in the intended amended Notice of Motion is not available to the applicant as the same was appropriated as withholding tax from the principal sum of Ksh. 4, 350, 143. 54 paid.

17. I further note that the interest claimed on the principal sum was part of the claim in the Notice of Motion dated 16th December, 2019 and an amendment of the said motion serves no purpose as it is a repetition of the same prayer which in the event the applicant holds as still live and pending ought to be litigated within the Notice of Motion dated 16th December, 2019.

18. From the foregoing, the Notice of Motion dated 24th March, 2021 is found to be without merit and is dismissed with costs to the respondents.

DATED, SIGNEDAND DELIVERED AT NAIROBI THIS 10TH DAY OF FEBRUARY, 2022

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A. K. NDUNG'U

JUDGE