[2023] KEHC 23155 (KLR)

Webtribe Limited t/a Jambopay v National Hospital Insurance Fund, Board of Management (Commercial Case E152 of 2021) [2023] KEHC 23155 (KLR) (Commercial and Tax) (5 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23155 (KLR)

Republic of Kenya

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

Commercial and Tax

Commercial Case E152 of 2021

JWW Mong'are, J

October 5, 2023

Between

Webtribe Limited T/A Jambopay

Plaintiff

and

National Hospital Insurance Fund, Board Of Management

Defendant

Ruling

1. The defendant by an application dated March 28, 2023 and supported by an affidavit sworn by Adrian Ojiambo on March 28, 2023 has moved this court under order 28 rules 9 and 10 of the Civil Procedure Rules seeking, among others that the court pleased to appoint a referee to:-a.Examine, ascertain and give a report on the actual sums collected by the plaintiff in statutory deductions or contributions from members of the applicant in relevant period.b.Ascertain the remuneration due and appropriated by the plaintiff and the money wrongly withheld or retained by the plaintiff.

2. The application is opposed and the plaintiff has filed a replying affidavit sworn by Danson Muchemi on March 31, 2023. Briefly the plaintiff has pleaded in its amended plaint that it collected members contributions amounting to Kshs 33,364,378,594/- in the relevant period. It further pleads that it was not paid Kshs 172,767,716. 75/- and Kshs 350,000,000/- for revenue collection services and seeks the sum of Kshs 297,123,384. 18/- being the alleged outstanding payment.

3. The defendant has filed a counterclaim for Kshs 80,972,234. 71/- being collections undertaken by the plaintiff but not remitted in the relevant period. Both parties have filed very voluminous documents as part of their list and bundle of documents and considering the historical dispute of accounts not reconciled and filed before the court, the defendant invites the court to allow the application for appointment of an expert assistance and therefore an appointment of a referee to examine, ascertain and give a report on the actual sums collected by the plaintiff being statutory deductions or contributions from members of the 1st defendant and examine all accounts to resolve the prolonged dispute and rivalling claims by the parties and proposes the appointment of KPMG as referees. The defendant is willing to share in the costs of the said expert referee.

4. The plaintiff has opposed the application. The plaintiff argued that in filing their pleadings parties were able examine and assess their evidence and determine their claims or defence thereto. Therefore, the plaintiff argued, there would be no need to call yet an expert to come and determine their claim. The plaintiff urged the court to dismiss the application.

Analysis and Determination 5. I have considered the rival arguments by both parties and the provisions of order 28 rule 9 and 10 of the Civil Procedure Rules. I note that the said Rules empower this court to allow, where a party has applied or on its own motion, the input of an expert in assisting the court to make its findings in the matter before it. Order 28 rules 9 and 10 states as follows:-(9)“Examination of accounts by referee [order 28, rule 9]On the application of any party or of its own motion in any suit in which the examination of accounts is necessary or desirable, the court may refer the accounts for examination to such person as it thinks fit.(10)Instructions to referee [order 28, rule 10](1)The court shall furnish a referee appointed under rule 9 with such part of the proceedings and such instructions as appear necessary, and the instructions shall distinctly specify whether the referee is merely to transmit the proceedings which he may hold on the inquiry, or also to report his own opinion on the point referred for his examination.”(2)The proceedings and report (if any) of the referee shall be evidence in the suit, but where the court has reason to be dissatisfied with them it may direct such further inquiry as it shall think fit.

6. The applicant has proposed the engagement of KPMG as a referee to examine the accounts and the bundles provided thereto by both parties and has offered to share the costs of the said expert with the plaintiff. The court is of the view that going by the voluminous bundle of documents the parties have availed to the court and which they seek to rely in to establish the plaintiff’s case and the defendant’s counterclaim. I therefore find no good reason why I should not allow the engagement of an expert to distil the claims by the two parties and provide the court with a report on the same. The court therefore directs both parties to meet and agree with KPMG as proposed by the applicant and agree on the terms of engagement. The said firm will then provide the court with a timeline within which it expects to complete the expert report on the disputed account. Both parties shall share the costs of the referee.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 5TH DAY OF OCTOBER 2023. ...............................J. W. W. MONG’AREJUDGEIn the presence ofMr. Ojienda for the Plaintiff.Mr. Ojiambo for the Defendant.Amos - Court Assistant