[2021] KEHC 8031 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

CIVIL APPEAL NO.153 OF 2019

SANTOKHSINGH T/A TRILOK CONSTRUCTION.................APPELLANT

-VERSUS-

SUCHAMINVESTMENTS LIMITED.......................................RESPONDENT

RULING

1. There are two applications for consideration and subject of this Ruling. The first is the Notice of Motion Application dated 26th August, 2020 filed by the Respondent/Applicant on the 28TH August, 2020. The application seeks orders that:

a) Spent;

b) Spent;

c) Pending the hearing and determination of this application, the execution of the Judgment delivered on 2nd June, 2020 be stayed;

d) The Applicant be granted leave to introduce additional documentary evidence and such evidence be deemed to have been on court record from the date of filing the record of Appeal.

e) The court does review its Judgment dated 2nd June, 2020 and varies the decretal sum from Kshs.7,947,089. 08 to Kshs.5,416,141. 07.

f) The Applicant be allowed to pay the decretal sum by 20 monthly installments from the date of the court’s order.

g) Costs of this application be provide for.

2. The matter was placed before the Hon. Justice P.J Otieno on 3rdSeptember, 2020and the court granted an interim stay in terms of prayer (c) of the said application.

3. The said orders are the basis of the second application which is a Notice of Motion Application dated 7th September, 2020 and filed by the Appellant herein. It seeks for orders that the court be pleased to discharge the ex-parte orders issued on 4th September, 2019 by the Hon. Justice Otieno. The Appellant avers that the Respondent obtained the temporary orders for stay through deliberate misrepresentation and non-disclosure of all material facts pertinent to the suit and/or without any notice of Appeal. Further that the period for filing an Appeal expired on 26th August, 2020 and there is no application for enlargement of time. Finally it is argued that a stay can only issue upon a party fulfilling the threshold stipulated under Order 42 rule 6 of the Civil Procedure Rules which the Respondent has not met.

4. Although the Respondent opposed the application, I am of the considered view that the Application dated 7th September, 2020 will stand determined once this court pronounces itself with respect to the application dated 26th August, 2019. Needless to say, temporary stay orders were granted on an interim basis pending the delivery of this Ruling, thus the same will automatically lapse. Therefore, in my respectful view, the application dated 7th September, 2020 has since been

overtaken by events and there is no need to delve into the said application.

5. Having said as much, I need not reiterate that the substantial part of this Ruling relates to the Application dated 26th August, 2020 wherein the Applicant seeks the prayers as set out in the opening paragraph of this Ruling. The grounds upon which the said application is premised are;

a) that this court on 2nd June, 2020 delivered a judgment in favour of the Appellant for the sum of Kshs.7,947,089. 07 on basis of the final certificate issued by the project’s consulting quantity surveyor on 3rd July, 2013;

b) that on the face of the certificate dated 3rd July, 2013, it was indicated that various deductions including the sum of Kshs.2,530,948/= being the sum of 3,626 bags of cement supplied to the Appellant;

c) It is averred that the Applicant had searched for the documents showing that it had ordered for the bags of cements in vain and it is until recently and after an extensive archival search, that the documents were found;

d) According to Applicant, the said documents will help the court in reaching a fair decision for both parties.

6. The application is further supported by the affidavitof Nitin Suresh Chaubal, the Respondent’s Financial Controller sworn on the 26th August, 2020. He deposited that the Appellant has commenced execution by proclaiming the Respondent’s assets in its hotel and it is in the interest of justice that the deduction of Kshs.2,530,948/= be considered. The local purchase orders and invoices are in the name of Hayer Bishan Singh & Sons Ltd but the deponent qualifies them by asserting that the Company is a Sister Company to the Defendant’s by virtue of having common directorship and those deductions are the basis of the deductions sought. Lastly, the deponent submitted that the Hotel industry has suffered a huge loss having been hit as a result of Covid-19 Pandemic and the Applicant is not an exception to those transgressions. It is therefore sought that the Applicant be allowed to repay the debt in 20 monthly installments.

7. The Appellant opposed the application and in doing so filed Grounds of Oppositiondated 9th September, 2020 raising the following grounds:-

a) Firstly, that, after passing the Judgment in this Appeal on 2nd June, 2020, this court became functus officio and cannot revisit the said Judgment;

b) Secondly, that the application is defective and an omnibus application seeking several reliefs and therefore incapable of being properly adjudicated by this court and should therefore be struck out; and

c) Lastly, that there is no new material evidence presented before the court to show that the documents sought to be introduced were not in the reach of the Applicant even after the exercise of due diligence.

8. The application was canvassed by way of written submissions and both parties complied by filing their submissions.

Applicant’s Submissions

9. The Appellant filed its submissions dated 26th October, 2020 on the27th October, 2020. It is first submitted that the prayers sought in theapplication are sequential in that one prayer leads to the other and the narration that the prayers sought are an omnibus is mere speculation. As regards the allegations that the court isfunctus officio, the Applicant was of the view that since it is not asking the court to re-engage itself in the merits of the case, then the doctrine has been wrongly invoked.

10. On whether the Applicant should be allowed to introduce new evidence, this court was invited to consider the guidelines laid out in the Supreme Court case of Mohamed Abdi Mahamud -vs- Ahmed Abdullahi Mohamed & 3 Others [2018]eKLR. The Applicant then proceeded to submit that on the face of the certificate dated 3rd July, 2013 which formed the basis of this court’s decision in its Judgment, it had been indicated that various deductions were to be made including Kshs.2,530,948/=. That those assertions are buttressed by documents like the purchase requisition, local purchase order invoices from Bamburi Cement among other documents which show that the bags of cement were ordered and paid for.

11. The Applicant further submitted that it seeks to introduce the said documents with the sole intention of ensuring that justice is to be done to both parties and the Appellant is not unjustly enriched in the sum of Kshs.5,416,141. 07/=. As such, the Applicant submitted that it has met the grounds for review as provided for under Order 45 Rule 1 of the Civil Procedure Rules to warrant the court exercise its discretion in its favour. Also, the Applicant submitted that it was not necessary to attach the order being appealed against and the application cannot be deemed defective on that account. To support that view, reliance was placed in the Court of Appeal case of Peter Kirika Githaiga & Another –vs-Betty Rashid [2016] eKLR.

12. With regard to prayer for payment in instalments, it is submitted that the court can exercise its discretion in line with Order 21 Rule 12 of the Civil Procedure Rules, 2010in favour of the Applicant considering that the Hotel industry has largely been affected by the Covid-19 Pandemic. The Applicant submits that it had to close its hotel business owing to restrictions imposed to curve the Covid-19 Pandemic and it is therefore unable to pay the decretal sum in a lump sum.

13. It is further submitted that the Applicant is willing to pay the first instalment of Kshs.400,000/=towards settling the uncontested decree and further pay the balance within 20 monthly instalments.

RESPONDENT’S SUBMISSIONS

14. The Respondent’s submissions reiterated the Grounds of Opposition.

ANALYSIS AND DETERMINATION

15. I have had the benefit of considering all the papers filed including the oralsubmissions and the cases cited by the parties. In my humble view, the following issues isolate selves for determination;

a) Whether the application is an omnibus application rendering it cumbersome for effective and proportionate just determination.

b) Whether the applicant has met the threshold for introduction of additional evidence.

c) Whether in the circumstance the court can review its judgment as sought or whether the court is functus officio?

d) Whether the applicant should be allowed to repay the decretal sum in monthly instalments.

a) Whether the Application can be faulted for being an omnibus application.

16. I have considered the extent of the prayers sought and do not entertain any doubt that the application is indeed all encompassing that it can easily pass for an omnibus application. It substantially seeks leave so as to introduce additional documentary evidence. And that based on those documents, the Applicant seeks that the court varies its Judgment delivered on 2nd June, 2020 by reducing the decretal sum downwards from Kshs.7,947,089. 08 to Kshs.5,416,141. 07. Further, in the same application, the Applicant seeks to be allowed to pay the decretal sum by 20 monthly instalments from the date of the court’s order.

17. It is worth noting that the orders sought by the Applicant are governed by different rules and are to be adjudicated by different judicial principles and different courts have strongly deprecated such practice. The court in the case of Pyaralal Mhand Bheru Rajput –vs- Barclays Bank And Others Civil Case No. 38 of 2004,the Court stated thus;

“There is no doubt the application is an all-cure, omnibus application. It is a wide net cast over a large body of water, and out of all the lake or sea, creatures caught in it, there will be one or two edible crabs or fish. It is not quite so. An omnibus application is incapable of proper adjudication by the court for each of the reliefs sought apart from being governed by different rules, is also subject to long established and different judicial principles which counsel need to bring to the attention of, and the court needs to consider before granting the entire relief sought. This alone makes the plaintiff’s application incurably defective, and a candidate for striking out.”

18. Nevertheless, although the application herein may not be of elegant drafting, I do appreciate that since the advent of the overriding objectives of the court and the need for substantive determination of disputes dictates under the Constitution, the court now strives to sustain disputes rather that strike out the same on technicalities. In the same vein, this Court is minded to act upon the avowed demands of Article 159 of the Constitution and leans towards serving substantive justice by acting blind to the technicalities especially those which do not affect the substance of the application.

19. The other preliminary issue to be considered as raised by the Appellant, iswhether the failure to attach the orders sought to be reviewed renders the application defective and therefore subject for dismissal. In my view, the failure to attach a decree and/or the orders vis-à-vis the overriding objectives of this court is not fatal to an application for review. I do not find what prejudice or injustice would be occasioned to the Respondent/Applicant by virtue of the omission to annex a decree in this application.

20. I must also hasten to state that this Court as an agency of the legal processes of justice is always called upon to appreciates all the relevant circumstances and the requirements of a particular case, and to conscientiously determine the best cause. I am thus convinced that this is one of the cases where a Court can disregard procedural technicalities in favour of substantive justice, having regard to all relevant circumstances obtaining in this case.

21. For the above reasons, I dismiss the Respondent’s objection that failure to annex a copy of decree or orders sought to be reviewed renders this application fatally defective. I will therefore proceed to determine the merits of the application.

b) Whether the applicant has met the threshold for introduction of additional evidence

22. Section 78(1)(2) of the Civil Procedure Act empowers the Court totake additional evidence in an Appeal. The Applicant herein seeks to introduce documents which include purchase requisitions, local purchase orders, invoice from Bamburi Cement, statement of accounts from Bamburi Cement and a cheque paid to Bamburi Cement on account of various bags supplied to the Appellant. According to the Applicant, these documents seek to prove that the Appellant ordered bags of cement from Bamburi Cement and paid for the same. These documents are further intended to buttress the argument that the final certificate dated3rd July, 2013had on its face an indication that various deductions including Kshs.2,530,948/= were to be made.

23. The Court of Appeal in considering the basis upon which a party could be allowed to introduce additional evidence under rule 29(1)(b) of the Court of Appeal Rules expressed itself in the case of Dorothy Nelima Wafula -vs- Hellen Nekesa Nielsen & Paul FredrickNelson [2017]eKLR,as follows:-

“It was expressed that under Rule 29 (1) (b), additional evidence will be introduced on appeal in the discretion of the Court, “for sufficient reason”. Though what constitutes ‘sufficient reason’ is not explained in the rule, through judicial practice the Court has developed guidelines to be satisfied before it can exercise its discretion in favour of a party seeking to present additional evidence on appeal. Before this Court can permit additional evidence under rule 29, it must be shown, one, that such evidence could not have been obtained by reasonable diligence before and during the hearing; two, the new evidence would probably have had an important influence on the result of the case if it was available at the time of the trial, and finally, that the evidence sought to be adduced is credible, though it need not be incontrovertible.”

24. I have also considered, and agree with the guidelines on admission ofadditional evidence as laid out by the Supreme Court in the case ofMohamed Abdi Mahamud -vs- Ahmed Abdullahi Mohamad & 3Others[2018]eKLR.For purposes of this case I will however weigh the prayer for introduction of addition evidence by seeking to establish whether;

(a) If that evidence could have been obtained by the applicant after reasonable diligence before and during hearing;

(b) whether there is a probability that the additional evidence would have an important influence on the result of the case; and finally,

(c) based on the foregoing, if there is sufficient reason to admit the additional evidence.

25. On the first limb, the Applicant has submitted that it could not have obtained the documents showing the cement was requisitioned and paid for since the documents were not in its possession. Further, that the Applicant had to reconsider the accounts from Bamburi Cement and purchase orders from its sister Companies and as such, the documents were not within the reach of the Applicant at the time of hearing. The Respondent on its part, only submitted that the applicant had not shown that it could not have been obtained the documents after a reasonable diligence.

26. Despite the submissions by the parties as indicated above, I have gone through the document sought to be introduced in evidence. Most of the payment receipts and requisition notes sought to be introduced are made by a Company that is different from the Applicant, that is Hayer Bishan Singh & Sons Ltd. However, the Applicant avers that it shares the same directorship with the said Hayer Bishan Singh & Sons Ltd and therefore the requisitions and payment were made on its behalf.

27. My humble view however, is that even if these documents were to be accepted as having been filed as at the time of Appeal, they would not have any important influence or impact on the result of the Appeal. I say so because the Applicant would have had to prove the allegation that the payments were made by Hayer Bishan Singh & Sons on its behalf. The documents would have remained as mere allegations even at the filing of this Appeal and would bear no substantial influence or impact on the finality of the Appeal. I am also of the view that additional evidence should not be admitted to enable a Plaintiff to make out a fresh case in an Appeal. Further, admission of new evidence on Appeal should be exercised very sparingly and with great caution since it is likely to make it impossible for the other party to respond effectively.

28. Having stated that the documents sought to be introduced were prepared in the name of a different Company other than the Applicant, it is my view that if admitted, the documents would on that basis introduce more vagueness and only meant to bolster or fill in gaps in the Applicant’s Appeal. Furthermore, these documents, if admitted will lead to the obvious evidentiary implications in terms of authenticity, veracity and admissibility which leads to the question of whether the Directors of Hayer Bishan Singh & Sons Ltd will be amenable to cross-examination at this stage which is a post-judgment stage.

29. Overall, I am not satisfied that the additional evidence in documents sought to be introduced meets the criteria and guidelines as laid out by the Supreme Court in the case of Mohamed Abdi Mahamud -vs- Ahmed Abdullahi Mohamad & 3Others[2018]eKLR.Accordingly, this prayer fails.

c)Whether in the circumstances the court can review itsJudgment as sought or whether the court is functus officio?

30. The Applicant has submitted that this Court should review its Judgment on grounds that the final certificate dated 3rd July, 2013 issued by the Project Consulting Quantity Surveyor also showed that there were some deductions to be made including Kshs.2,530,948/= which was not done. In the Applicant’s view, these are errors on the face of the record which should be corrected and should not be construed to intimate a request for the Judgment to be reviewed on its merit. The Respondent on the other hand, hold the view that this Court is functus officio and cannot accede to a request seeking to change the Judgment on merit. I wish to first consider if the ground that the court is functus officio is merited and then consideron whether there are grounds for review established by the Applicant.

Whether this court is functus officio

31. It is important to note that the functus officio doctrine is one of the mechanism or means by which the law gives expression to the principle of finality. It connotes that the court should exercise its judicial powers only once in relation to the same matter. Therefore, the general principle is that, after passing a Judgment, the court becomes functus officio and cannot revisit the Judgment on merits or purport to exercise judicial power over the same matter, save as provided for by law. (See the Supreme Court of Kenya’s decision in the case of Menginya Salim Murgani –vs- Kenya Revenue Authority[2014] eKLR.

32. However, the rule of functus officio has exceptions. Section 99 of the Civil Procedure Act establishes the slip rule and provides as follows:-

“Clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the court either of its own motion or on the application of any of the parties.”

33. Further, the Civil Procedure Rules provides under Order 21 Rule 3(3)that:-

“A judgment once signed shall not afterwards be altered oradded to save as provided by section 99 of the Act or on review.”

34. From the foregoing, it therefore can be gain-said that the law allows for the correction of a Judgment but not its merits. The jurisprudence of our precedence supports the place for exceptions including the Court of Appeal in the case of Telkom Kenya Limited -vs- John Ochanda (Suing On His Own Behalf And On Behalf Of 996 Former Employees Of Telkom Kenya Limited) [2014]eKLR, which followed with approval the decision in the Canadian case of Chandler vs Alberta Association Of Architects [1989] 2 S.C.R. 848, where, in explaining the origins of the rule offunctus office, it was held in part that: -

“...The rule applied only after the formal judgment had been drawn up, issued and entered, and was subject to two exceptions:

1) Where there had been a slip in drawing it up, and,

2) Where there was an error in expressing the manifest intention of the court.

35. In the upshot and with reference to the cases cited above, it is my considered view that the doctrine of functus officio is not to be understood to bar any engagement by a court with a case that it has already decided or pronounced itself on, as the Respondent herein intimated. What it does bar is a merit-based decisional re-engagement with the case once final Judgment has been entered and a decree thereon issued.

36. In the instant motion as stated earlier, the court is being asked to reconsider the final certificate dated 3rd July, 2013 and find out if in the amount of Kshs.7,947,089. 08 due to the Appellant, it had been indicated that some deductions were to be made including the sum ofKshs.2,530,948/=.

37. I have gone through the Judgment delivered on 2nd June, 2020. After considering the record as presented before me, I find that the Plaintiff/ Appellant had not proved its claim for Kshs.16,514,808. 11 which was an alleged balance owed to the Appellant for works it had carried out in the Defendant’s premises. I, as well, find that the Defendant/Respondent who is the Applicant in the instant motion, had not proved on a balance of probability the amount of Kshs.24,932,857/= it counter claimed. The Judgment was however based on admission by the Defendant that the final certificate which was pending payment was dated 3rd July, 2013 for an amount of Kshs.7,947,089. 07. In as much as this Court found that the Plaintiff/Applicant deserved to be compensated for the works and services it rendered to the Defendant, this Court must also emphasis that the Plaintiff had to account for expenses which were subject to deduction. That was the intention of the court in the said Judgment.

38. Now, it has been brought to the attention of the court that the final certificate indicated that there were some deductions to be made before the payment was to be effected. It must have been an oversight on part of the court in failing to take into account the said deductions. The final certificate is contained at page 53 of the Record of Appeal which shows that the deduction which were to be made included Kshs.2,530,948/=.

39. The upshot of my consideration is that, the Judgment delivered on 2ndJune, 2020is hereby reviewed and varied by adjusting the amount admitted to Kshs.5,416,141. 07. This is after taking into account the deductions captured on the face of the final certificate dated3rd July, 2013.

40. Lastly, on whether the Applicant should be allowed to pay the decretal sum in instalments, I wish to re-emphasis that the proper test to apply in granting orders for payment of a decretal amount by way of installments lies on the Judgment Debtor in showing his bona fides by arranging for fair payment of the proportion of the debt.

41. This Court takes notice that the hotel industry has largely been shaken by grievances brought about by the Covid-19 Pandemic. In as much as the Appellant/Judgment Creditor is entitled to payment of the decretal amount, which he should receive promptly to reap the fruits of the Judgment, the court appreciates that the Judgment Debtor might genuinely be in a difficult position in paying the decretal amount at once given the declined business in the hotel industry. However, the Applicant has to show seriousness in paying the decretal amount. In that event it should show its bona fides by arranging fair payment proposals to liquidate the said amount.

42. The Applicant has proposed to repay the decretal sum by first making a first instalment of Kshs.400,000/= and repay the balance in 20 monthly instalments. In my view the proposal to liquidate the decretal is fair and the same is allowed, however with some variations as articulated in paragraph 43 below.

DISPOSITION

43. In conclusion, I hereby direct as follows;

a) The decretal amount of Kshs.7,947,089. 08 awarded to the Plaintiff/Appellant vide the Judgment dated 2nd June, 2020 be and is hereby varied to Kshs.5,416,141. 07 for reasons stated in this ruling.

b) The Applicant is hereby allowed to liquidated the decretal sum in monthly instalments of Kshs.400,000/=. The same to be made on or before the 5th day of every succeeding month, beginning with the month of April, 2021.

c) Each party shall bear its own costs.

It is hereby so ordered.

DELIVERED, DATED AND SIGNED VIRTUALLY AT MOMBASA THIS 29TH DAY OF MARCH, 2021.

D. O. CHEPKWONY

JUDGE

29/3/2021