[2017] KEHC 2464 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL CASE 372 OF 2014

WILLIAM KAZUNGU SIMBAH…………………………......PLAINTIFF

VERSUS

HOUSING FINANCE COMPANY LILITED……………….DEFENDANT

RULING

This is a ruling following an application by the plaintiff dated 2nd June, 2017 seeking orders that leave be granted to the Applicant to file certificate as to electronic print that conforms with Section 106B(4) of the Evidence Act Cap 80 Laws of Kenya. The application was made on the grounds;

1. That the applicant filed his pleadings on 5th November, 2014.

2. That at the time the plaintiff/Applicant filed his pleadings, the certificate as to electronic print was inadvertently left out.

3. That part of the evidence the applicant will rely on in this case is a computer printout.

4. That the same can only be admissible if it conforms with the provisions of the Evidence Act.

5. That if denied the opportunity the plaintiff/Applicant will suffer irreparably.

6. That the defendant will not suffer any prejudice if this application is allowed.

7. In the premises it is in the interest of justice that the applicant be given leave to file the certificate as to electronic print as set out in Section 106B of the Evidence Act Cap 80 laws of Kenya.

The Applicant’s advocate submitted that in the court’s ruling dated 20th April, 2017, the court did not go into the merits of the certificate and that the certificate they intended to produce could still be produced as there was a window for them to prepare another certificate.

The Applicants advocate further submitted that the respondents in their replying affidavit sworn by Joseph Lule and dated 20th June, 2017 had not countered the substance of the applicant’s application. He further contended that he was not out to circumvent the process of the court.

He cited the case of Steve Kariuki versus George Mike Wanjohi & Others (2013) eKLR stating that the judge in that case had observed that the court should act justly in the matter. He urged the court to exercise its discretion and relied on the case of DT Dobie & Company Ltd Versus Mbaria Muchina CA No. 37 of 1978 which is to the effect that no suit should be dismissed on a technicality unless it is so hopeless.

The applicants’ advocate also submitted that the defendant’s authorities do not apply as this application is not one for review. He submitted that he had shown that the court has discretion under Section 1A, 1B and 3A of the Civil Procedure ActandArticle 159of the constitution. In closing, he asserted that the certificate he sought to produce is not the same as the one the court made a ruling on.

The Respondent advocates opposed the application. He relied on the replying affidavit sworn by Joseph Lule and dated 20th June, 2017. He submitted that the court has already made a ruling on the matter and the only options the applicant has in that regard is to either review or appeal against the said ruling made on the 20thApril, 2017.

Further, the Respondent’s Counsel raised the issue of the discretion of the court. He stated that for one to ask the court to exercise discretion, the argument has to be based on sound legal principles and has to bring evidence to justify the court’s exercise of its jurisdiction. He cited the case of Patel Versus Trans world Safaris Limited Civil Application No Nai 197 of 3003and Sharpe Versus Wakefield (1891) AC 173 in support of his argument.

Counsel also submitted that at the point of filing electronic evidence, one is required to comply with Section 106B of the Evidence Act. He cited this court’s ruling dated 20th April, 2017 as the basis for this argument.

The respondents argued that the decision in the DT Dobie case cited by the applicant was inapplicable as it related to striking out of pleadings. He went further to submit that in the Steve Kariuki case also cited by the applicant, the issue of overriding interest and substantive justice was argued when the parties argued the objection, and the court held that the issue at hand was not merely a procedural technicality but a substantive issue.

The respondent closed by submitting that the court lacks the jurisdiction to grant the orders sought by the applicant. He urged the court to dismiss the application.

The court has considered the application and submissions made by the learned counsels.

On the issue of whether or not there was a window left to prepare another certificate, this court is of the view that there is none. This court, in its ruling dated 20thApril, 2017, held that the certificate in that instance was inadmissible primarily because it had failed to comply with Section 106B of the Evidence Act. The court held that filing the certificate after pre-trial directions and doing so without leave of the court could have been excused but the omission on the part of the plaintiff/Applicant of the material particulars set out in Section 106B did not constitute a mere technicality rather it rendered the certificate fatally defective.

Regarding the issue of whether the court has already decided on the matter, this court answers in the affirmative. The applicant’s advocate submitted that the certificate dated 22nd May, 2017 that they sought to produce is not the same as the one dated 7thMay 2017 which the court had ruled on in the ruling dated 20th April 2017. Indeed it is not. However, what the applicant has done is to prepare another certificate which on the face of it conforms to the requirements set out in Section 106B.

The respondent has argued that, when exercising its discretion, the court ought to be consistent and be guided by sound legal principles and the evidence adduced by the party asking the court to exercise its discretion.

They have cited the case of Patel Versus Transworld Safaris Limited Civil Application No Nai 197 of 2003, cited inKenya Tea Growers Association versus Kenya Plantation and Agricultural Workers Union, Court of Appeal No Nai of 2016. In the Patel Case, the following statements of law was made:

“In deciding the matter before it, the court exercises discretionary jurisdiction which discretion has to be based on evidence and sound legal principles. The duty, obviously, squarely falls on the applicant to place such evidence before the court hearing its application.”

In the present case, the applicant stated in their grounds in support of the application that, part of the evidence they would rely on at the trial is a computer printout and the same could only be admissible if the certificate for electronic print out conformed to the provisions of Section 106B of the Evidence Act. The court having made a finding on the issue vide its ruling dated the 20/4/2017, the only option that the applicant had, was to seek a review of the order or file an Appeal against the said ruling. By filing the present application, the applicant has abused this court’s process.

It is for these reasons that the court does not find any merits in the applicant’s application. Consequently, the court makes the following orders:

1. That the application is dismissed.

2. Costs of the application to the respondent.

It is so ordered.

Dated, Signed and Delivered at Nairobi this 4thDay of September, 2017.

…………….....

L. NJUGUNA

JUDGE

In the Presence of

…………………….....for the Applicant

……………………….for the Respondent