[2022] KEHC 3233 (KLR)

Shah v Kuldip Singh and HarminderKaur T/a Technical Institute (Civil Suit 516 of 2020) [2022] KEHC 3233 (KLR) (Commercial and Tax) (15 July 2022) (Ruling)

Neutral citation: [2022] KEHC 3233 (KLR)

Republic of Kenya

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

Commercial and Tax

Civil Suit 516 of 2020

A Mabeya, J

July 15, 2022

Between

Keshavji Jivraj Shah

Respondent

and

Kuldip Singh and HarminderKaur T/a Technical Institute

Defendant

Ruling

1. This is a ruling on an application dated 16/6/2021 brought pursuant to Article 49 and 50 of the Constitution; order 45 rule 1 of the Civil Procedure Rules and section 3A of the Civil Procedure Act.

2. In the application, the defendant sought the review of the ruling and order of this Court made on 10/6/2021 and for leave to file its defence to this suit within the statutory timeline.

3. The application was premised on the grounds that; by the said ruling, this Court awarded the plaintiff the sum of Kshs. 20,466,980/- on an application for summary judgment and judgment on admission. That there is an error apparent on the record in the said ruling as it turned on the finding that the defendant did not file a replying affidavit to the plaintiff’s Notice of Motion dated 16/2/2021 aforementioned

4. That the defendant had filed its replying affidavit sworn by Mr. Kuldip Singh on 22/3/2021 in opposition to the plaintiff’s aforementioned application. That vide the said ruling, the defendant has been condemned unheard as the matter now stands concluded on account of the aforesaid error apparent on the face of the record.

5. The defendant pleaded that it stands to suffer irreparably if the plaintiff is allowed to proceed with the intended execution prior to the review of the error on the face of the record and that he has a meritorious defence against the plaintiff’s claim.

6. In opposition, the plaintiff filed a replying affidavit sworn on 29/6/2021. He stated that the said ruling had determined the plaintiff’s application dated 16/2/2021 and the defendant’s preliminary objection dated 16/1/2021. That there is no provision in law that exempts a defendant from filing a defence within the prescribed time. That in the replying affidavit sworn on 22/3/2021, no draft defence was exhibited to show that the defendant ought to have leave to defend the suit.

7. That the averments therein were solely on their preliminary objection to the suit and there was nothing new or different in that replying affidavit that the Court ought to have taken into account which could have led to a different decision. That the Court had considered the defendant’s written submissions dated 22/3/2021 and the defendant was therefore not condemned unheard.

8. It was further contended that the defendant had not attached any draft defence to its Supporting Affidavit of 16/6/2021. That the defendants’ belated attempt to state its grounds of defence in an application for review should not be entertained as it would amount to an abuse of the process of court.

9. In rebuttal to the replying affidavit the defendant lodged a supplementary affidavit on 22/9/2021. It contended that the plaintiff had admitted that indeed the defendant had duly filed a replying affidavit to the application for a summary judgment. That the defendant’s replying affidavit sworn on 22/3/2021 had substantive grounds in opposition to the application for summary judgment. A draft defence was then attached to the supplementary affidavit.

10. The issue for determination is whether the defendants’ application dated 16/6/2021 has met the threshold for review.

11. Order 45 Rule 1 of the Civil Procedure Rules provides instances where an order/ruling or judgment/decree can be reviewed. These are; where there is discovery of new and important matter or evidence which, after the exercise of due diligence, was not within a party’s knowledge or could not be produced by him at the time when the order/decree was made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason. Such application must be made timeously.

12. In the present case, the impugned ruling was made on 10/6/2021. The present application was made on 16/6/2021, barely a week later. Accordingly, the application was made timeously.

13. As for the basis for the application, it was the defendants’ case that there was an error apparent on the face of the record. This was on the basis that in the impugned ruling, the Court had made a finding that the applicant had not filed a replying affidavit to the plaintiff’s application dated 16/2/2021. That this was an error as the defendant had filed a replying affidavit of Kuldip Singh sworn on 22/3/2021.

14. The Court has considered the said ruling. In paragraph 15 thereof, the Court noted that the defendant had not filed any replying affidavit to the Motion dated 16/2/2021. It was also indicated that the defendant had not filed a defence to traverse the allegations in the plaint. A copy of the said replying affidavit was produced vide the supplementary affidavit filed herein in support of the present application. Further, there is receipt issued by the Court on the 22/3/2021 in respect of the said filing.

15. In view of the foregoing, it would seem that for one reason or the other, the Court did not see the said replying affidavit in the court file before delivering the subject ruling. It therefore goes without saying that the defendant was condemned unheard as its averments in the said replying affidavit were never considered at all. Obviously, that was an error apparent on the face of the record.

16. The Court has considered the said affidavit. The defendants’ main opposition to the application for summary and default judgment was that there was a preliminary objection on record objecting to the jurisdiction of the Court to hear the matter. That in the premises, time for purposes of filing a defence had stopped and judgment could not be entered while the issue was yet to be determined.

17. As regards sufficient reason, the defendant annexed to his supplementary affidavit of 22/9/2021 a draft defence to the plaintiff’s suit. The Court has considered that draft defence. It cannot be said to be frivolous. It definitely raises a triable defence against the plaint dated November 27, 2020.

18. Having noted the foregoing, it would be unfair for the Court to deny the defendant the opportunity to be heard. In this regard, it is in the interest of justice that the application be allowed.

19. Accordingly, the ruling of 10/6/2021 is hereby reviewed and set aside. The defendant is granted leave file his defence within 7 days of the date hereof.It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 15TH DAY OF JULY, 2022. A. MABEYA, FCIArbJUDGE