[2022] KEHC 17232 (KLR)

St. Patrick’s Hill School Ltd v Bank of Africa Kenya Ltd (Civil Case 7 of 2017) [2022] KEHC 17232 (KLR) (7 November 2022) (Ruling)

Neutral citation: [2022] KEHC 17232 (KLR)

Republic of Kenya

In the High Court at Kajiado

Civil Case 7 of 2017

SN Mutuku, J

November 7, 2022

Between

St. Patrick’s Hill School Ltd

Plaintiff

and

Bank of Africa Kenya Ltd

Defendant

Ruling

1. The proceedings in this matter are on-going. The Plaintiff has closed its case on March 16, 2022. Before the case for defence commenced, Mr Kang’ethe for the Plaintiff sought leave to file an application to object to the evidence of Charles Wanjohi. He claimed that this witness has been substituted irregularly in place of Ben Mwaura who was the original witness.

2. The oral application was opposed by Mr Wawire for the Defendant, who argued that it would not be the best use of judicial time to allow counsel for the Plaintiff time to file a formal application and that an oral application would suffice. This court granted Mr Kang’the leave to file the application and serve it. The Plaintiff, through its counsel, filed the Notice of Motion

3. Following those directions, two applications have been filed both dated March 23, 2022. The first application is brought by the Plaintiff seeking orders to expunge and strike out from court’s record the witness statement of Charles Waiyaki for failure to abide by the law and orders of this honourable court. The second application is brought by the Defendants for orders that the Defendant’s witness statement sworn on March 9, 2021 by Charles Waiyaki be deemed as duly filed and in the alternative court to grant leave to Defendant to file the said witness statement.

4. This Ruling relates to both applications.

Plaintiff’s Notice of Motion 5. The Plaintiff’s notice of motion seeks the following orders:(i)That this Honourable Court expunge and strike out from the court record the witness statement of Charles Waiyaki for failure to abide by the law and the orders and authority of this Honourable Court.(ii)That this Honourable court upholds the existence of the witness statement by Ben Mwaura.(iii)That the proceeding hearing do proceed without a stranger’s evidence in line with the law and procedure.(iv)That costs be in the cause.

6. The Application is supported by an Affidavit sworn by Kangethe George Joseph who has deposed that the Defendant acted in gross misconduct by sneaking into court record the witness statement of Charles Waiyaki without leave of the court and this action is prejudicial to the Plaintiff and to a fair trial. Further that the Defendant has not demonstrated in any manner or form why the original witness Ben Mwaura is unable to give evidence on the witness statement on record upon which the Plaintiff has prepared for so long to interrogate directly and personally. It is deposed that it is in the interest of justice and fair trial that the witness statement by Charles Waiyaki be expunged.

7. The Application is opposed by the Respondent through a Replying Affidavit dated March 28, 2022 and sworn by Charles Waiyaki. He has deposed that he is employed by the Defendant as Senior Recoveries Officer. He denied that the witness statement was sneaked in. It is his case that the statement was filed on March 12, 2021 and served on the Plaintiff on March 15, 2021.

8. He has stated that the previous witness, Mr Ben Mwaura, was redeployed to another branch of the Bank and was not available to attend court; that the honourable court has discretion upon an application by a party to allow replacement of a witness and his/her statement and that the evidence to be adduced is the same as the one sworn by the previous witness save as to the signature and name.

Defendants Application 9. The Defendant’s Application seeks the following orders:(i)That this application be certified urgent and heard ex-parte in the first instance.(ii)Pending inter-partes hearing of this application, this Honourable court be pleased to grant leave to the Defendant to file this application.(iii)The Defendant’s witness statement sworn on March 9, 2021 by Charles Waiyaki and filed on March 12, 2021 be deemed as duly filed.(iv)In the alternative, this Honourable Court be pleased to grant leave to the Defendant to file the said Witness statement dated March 9, 2021. (v)The Plaintiff be compelled by an order of this Honourable court to pay the Defendant a sum of Kshs. 55,000,000 being the total monthly instalment arrears since July 17, 2017 when order compelling the Plaintiff to do so was issued.(vi)If the Plaintiff fails to comply with Order 5 above within 7 days of issuance of the order, this honourable court be pleased to compel the Plaintiff to furnish this honourable court with accounts of the net monthly collected from the charged property Title No. Ngong/Ngong/28914. (vii)Upon furnishing the said accounts, there be a further order compelling the Plaintiff to deposit the said collected income with the Defendant to reduce the said monthly instalment arrears.(viii)In default of deposit of the said income, the Defendant be at liberty to appoint a receiver to be collecting the said income from the charged property.(ix)In the alternative to prayers 5 to 8 above, this honourable court be pleased to set aside the orders of injunction given in a ruling delivered on July 30, 2018 restraining the Defendant from issuing demand or statutory Notices and disposing or in any other way interfering with the Plaintiff’s property known as Ngong/Ngong/28914. (x)The Defendant be at liberty to issue the forty Days’ Notice and Forty-Five days auctioneers Notice and thereafter sell the property by way of public auction in exercise of its statutory power of sale.(xi)That this honourable court be pleased to fix the matter for Defense hearing on priority basis in the month of May, 2022. (xii)Cost of the application be paid by the Plaintiff.

10. The application is supported by an affidavit sworn by Charles Waiyaki in which he has deposed that he is employed by the Defendant and hence competent to swear this affidavit; that there is in existence an order by this court to the effect that no application should be filed without leave of court; that in compliance with that order, the Plaintiff sought and was granted leave on March 16, 2022 to file an application to strike out the Bank’s Witness statement sworn by himself on March 9, 2021 and that it was for that reason that they filed this application seeking leave to admit the said witness statement.

11. He has deposed that the previous witness Mr Ben Mwaura was deployed to a faraway branch and is not available to attend court and that the substituted witness statement will not prejudice the Plaintiffs.

12. He has also made depositions on matters regarding the other prayers sought by the Defendant and that do not relate to the leave sought to admit the witness statement of Charles Waiyaki.

13. The Plaintiff filed Grounds of Opposition dated May 16, 2022. It is the case for the Plaintiff that the Application by the Defendant is misconceived, frivolous, scandalous and an abuse of this court’s process; that the application is incurable and fatally defective and that the prayers therein violate the canons of a fair trial as envisaged under article 10 (2)(b), 25(c), 27(i), 47(i) and 50(i) of the Constitution.

Parties’ Submissions 14. The Plaintiff has submitted that this court (Nyakundi, J) gave an order on November 8, 2018 to the effect that “No interlocutory Application should be filed without leave of the Court”; that on April 22, 2021, the Defendant filed an application without leave of the court and the same was struck off by the Court (Mwita, J) for want of leave; that on March 23, 2022 the Defendant has brought a replica application without leave of this court and that this is the fifth time the Defendant has brought this application and each time the application has been rejected for want of leave.

15. The main contention in the Plaintiff’s submissions is that the Defendant has brought the Defendant has filed multiple applications disguised as one application contrary to Order 51 Rule 4 of the Civil Procedure Rules that contemplates a single application and that the Defendant’s filing of distinct applications into one omnibus pleading containing myriad prayers and backgrounds in one Notice of Motion is untenable and unacceptable.

16. The Plaintiff has also raised a Preliminary Objection that this court lacks jurisdiction to entertain the Defendant’s Application dated March 23, 2022 for failure to raise a specific application for leave to file the application and urges that the application by the Defendant be dismissed.

17. The Defendant has submitted in support of the various orders it is seeking. It has urged that this exercises its discretion to find that the witness statement dated March 9, 2021 is duly filed and that it is only fair and just for this to be granted. The Defendant has also submitted on the other prayers it is seeking.

Determination 18. This is an old matter. I am the third Judge to handle this file. The hearing started before Justice Nyakundi. The matter was inherited by Justice Mwita and finally it landed on my desk upon taking over duties at Kajiado High Court. Surely parties must be desirous to have this matter concluded. Each party, and advocates representing parties, counsel is enjoined to assist the court to further the Overriding Objective of the Civil Procedure Act to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act.

19. The court (Nyakundi, J) ruled on November 8, 2018, ruled, inter alia, that “….no party to this suit is allowed to file any further interlocutory application save with leave of the court.” That order is still on record. I have not seen any pronouncements by the court discharging it. It is therefore expected that parties to this suit abide by that directive.

20. Without repeating the submissions of the parties in both applications here, I have read both applications and the grounds in support of each. The record of the court shows that as at March 16, 2022, when I concluded taking evidence of Peter Maina, a witness for the Plaintiff, Mr Kang’ethe informed the court that he was closing the case for the Plaintiff. He then raised an objection regarding the witness statement of Charles Waiyaki. He sought leave to put in a formal application to object to the evidence of this witness for reasons that he was substituted irregularly. This was opposed but the court granted leave. This was in line with the directive of the court for parties to seek leave before filing any application.

21. Mr Wawire, appearing for the Defendant did not raise any issue to the effect that he, too, wished to seek leave to file an application to seek the current prayers. I allowed the Plaintiff, through his counsel, 7 days to file the application. The result was that two applications bearing the same date, March 23, 2022, were filed. One by the Plaintiff, with leave, and the other by the Defendant without leave. The application by the Plaintiff simply seeks to strike out the witness statement of Charles Waiyaki who had been substituted without leave of the court. That of the Defendant contains what counsel for the Plaintiff terms as “an omnibus pleading containing myriad prayers.”

22. It was wrong and ill-advised for counsel for the Defendant to file the Notice of Motion dated March 23, 2022 without leave of the court. Even if this court were to assume that he had forgotten about the issue of the witness statement, the application by Mr Kang’ethe which he vehemently opposed ought to have jogged his memory that he had a witness statement that was wrongly filed without leave of the court. By waiting until Mr Kangethe obtained leave of the court to file his application and then filing the application reeks of mischief.

23. I agree with the counsel for the Plaintiff that this court lacks jurisdiction to entertain the Defendant’s Application for want of leave to file it. In my view, the Defendant through its legal counsel miscalculated their action in filing without leave, hoping that the court will allow them leave retrospectively. This to me is an abuse of court process given the history of this case and the directions given in it.

24. This court is not in a position to entertain the omnibus application. I agree with the judge inNicholas Kiptoo Arap Korir Salat v IEBC & 6 others [2013] eKLR that:“This Court, indeed all courts. Must never provide succour and cover to parties who exhibit scant respect for rules and timelines. Those rules and timelines serve to make the process of judicial adjudication and determination fair, just, certain and even-handed. Courts cannot aid in the bending or circumventing of rules and a shifting of goal posts for, while it may seem to aid one side, it unfairly harms the innocent party who strives to abide by the rules.”

25. This court is clothed with the inherent jurisdiction to ensure that all parties are given equal playing ground for justice to be seen to have been done. In the name of substantive justice, this court has power to allow any deserving prayer by a party for ends of justice to be met. The original witness Ben Mwaura is said to have been transferred, not out of the country, but within. His attendance can be procured easily given that the witness is said to be working for the Defendant but in another Branch of the Defendant Bank, which is not even disclosed.

26. I decline to allow the Defendant’s Notice of Motion dated March 23, 2022. It is an abuse of the court process. The Notice of Motion of the same date, filed by the Plaintiff is hereby allowed. The witness statement of Charles Waiyaki is hereby expunged from the court record for failure to abide by the law and directives of this court. The Defendant is at liberty to bring Ben Mwaura to testify on its behalf.

27. I decline to determine the other issues raised in the Defendant’s Notice of Motion. The Defendant is at liberty to move the court appropriately as directed by the court for any other matter in issue. I direct that this matter proceeds to defence case without further delay.

28. Orders shall issue accordingly.

DATED, SIGNED AND DELIVERED THIS 7TH NOVEMBER, 2022. S. N. MUTUKUJUDGE