[2023] KEHC 27324 (KLR)

St. Patrick’s Hill School Ltd v Bank of Africa Kenya Ltd (Civil Case 7 of 2017) [2023] KEHC 27324 (KLR) (14 November 2023) (Ruling)

Neutral citation: [2023] KEHC 27324 (KLR)

Republic of Kenya

In the High Court at Kajiado

Civil Case 7 of 2017

SN Mutuku, J

November 14, 2023

Between

St. Patrick’S Hill School Ltd

Plaintiff

and

Bank Of Africa Kenya Ltd

Defendant

Ruling

Background 1. On 7th November 2022 I delivered a ruling in respect of two applications both dated 23rd March 2022. The first application was brought by the Plaintiff seeking orders to expunge and strike out from court’s record the witness statement of Charles Waiyaki, a defence witness, for failure to abide by the law and orders of this honourable court. The second application was brought by the Defendants for orders that the Defendant’s witness statement sworn on 9th March 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.

2. Both applications were canvassed simultaneously. After considering both applications, arguments by both parties and the authorities they had cited, I determined the matter, inter alia, as follows that:“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.I decline to allow the Defendant’s Notice of Motion dated 23rd March 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.’

3. On 18th October 2023, when the matter was placed before me for hearing, Mr. Wawire, Learned Counsel for the Defendant told the court that the matter was listed for Defence hearing but that he had received a letter, copied to the Deputy Registrar, from counsel for the Plaintiff protesting the proceedings.

4. Mr. Rigoro, Learned Counsel for the Plaintiff informed the court that there were three advocates in conduct of this matter including Mr. Kang’ethe; that they wrote to Defendant’s advocates indicating that they had filed a Notice seeking leave to file a Preliminary Objection in that the Defendants are bringing on board witness evidence at this time; that their request for leave was grounded on several grounds:i.that counsel is trying to serve and file new statement of Ben Mwaura dated 11th October 2023 without leave of the court as was ordered by this court in its ruling.ii.That counsel cannot seek leave to introduce that witness evidence at this time because it is a total ambush.iii.That they discovered that Ben Mwaura cannot provide Defendant’s blank cheque to do as it wishes without leave of the court.iv.That the new evidence being brought after closure of Plaintiff’s case is unfair and that the Plaintiff needs time to read the evidence and counter it.v.That this new development of sneaking in this unauthorized new evidence without leave of the court necessitates Plaintiff to read the entire file to confirm if there is new evidence.vi.That the new evidence raises new points of law.vii.That the Defendant, through counsel, filed Notice of Appeal on 21st November 2022 and served counsel for the Plaintiff and that no notice of withdrawal was served on them.

5. Counsel submitted, further, that the Defendant has engaged in acts of desperation and ignored procedure and basic court protocols. He asked court to take judicial notice of this conduct and enforce sanctions.

6. In response, Mr. Wawire submitted that there was a purported notion that Kang’ethe & Co. Advocates was acting together with Murugu, Rigoro & Co. Advocates but that is not the position because the proper firm on record is Murugu, Rigoro & Co. Advocates because Mr. Kang’ethe testified in this matter as a witness for the Plaintiff; that the continued presence of Mr. Kang’ethe in coming to court to represent the Plaintiff in this matter is contrary to Rule 9 of the Advocates Rules. Mr. Wawire asked that this matter be handled by M/s Murugu, Rigoro & Co. Advocates.

7. Counsel further submitted that there is no new evidence being introduced and that the only difference between the two witness statements of Ben Mwaura was the addition in respect of the Counterclaim and the office held by the witness. He told the court that the latter statement dated 11th October 2023 can be expunged from the record and retain the witness statement dated 7th July 2017 instead of wasting time to seek leave to file Preliminary Objection to enable this matter to proceed to hearing.

8. In a rejoinder, Mr. Rigoro submitted that he is the lead counsel in this matter and that Mr. Kang’ethe is only assisting counsel.

9. I have considered this matter. I recall the caution I issued in the ruling delivered on 7th November 2022 to the effect that: “Each party, and advocate representing parties, 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.” I also directed parties to ensure that this matter proceeds to defence hearing without further delay.

10. It seems that parties, through their respective counsel, did not heed the caution that this matter had taken time to conclude, and it is time parties facilitated this court to expeditiously conclude this matter.

11. I have taken note of Mr. Wawire’s submission that he is willing to have the witness statement of Ben Mwaura filed on 11th October 2023 expunged from the record and retain the earlier statement. In the name of expeditious disposal of this matter, I think that is a wise thing to do. It will take time to allow Mr. Rigoro to seek leave to file a Notice of Preliminary Objection, to have the same served, take a date for hearing of the same and determine the same.

12. To my mind, it is in the interest of expeditious disposal of this matter if this matter were to proceed to its conclusion without further delay. For this reason, I hereby expunge the witness statement of Ben Mwaura filed on 11th October 2023 and allow the Defendant to rely on the earlier witness statement by the same witness. It is so ordered.

DATED, SIGNED AND DELIVERED THIS 14TH NOVEMBER 2023. S. N. MUTUKUJUDGE