Co-operative Bank of Kenya Ltd v Ndunda [2022] KEHC 12961 (KLR)

Co-operative Bank of Kenya Ltd v Ndunda (Civil Suit 483 of 2003) [2022] KEHC 12961 (KLR) (Commercial and Tax) (9 September 2022) (Ruling)

Neutral citation: [2022] KEHC 12961 (KLR)

Republic of Kenya

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

Commercial and Tax

Civil Suit 483 of 2003

A Mabeya, J

September 9, 2022

Between

Co-operative Bank of Kenya Ltd

Plaintiff

and

Samuel Musau Ndunda

Defendant

Ruling

1. This is a suit that dates back to 2003, roughly 22 years ago. The delay in hearing and determination of the suit has been caused by various reasons that are on record. There has been numerous applications which has made it even more murkier.

2. After the Court’s ruling of June 10, 2021, the same was followed by two applications in quick succession. These are dated May 19, 2021 and June 16, 2021, respectively. This is a ruling on those applications.

3. The first application dated June 16, 2021 was by the plaintiff. It was brought under Order 43 Rule 1(2) & (3), Order 42 Rule 6(1), Order 51 Rule 1 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act and Article 159(2) (d) of the Constitution.

4. It sought leave to appeal to the Court of Appeal against the order of June 10, 2021. The application was supported by the affidavit sworn by Lawrence Karanja on June 16, 2021. The plaintiff contended that it was directed to produce several documents requested by the defendant in his application made on March 11, 2021 within 14 days of those orders.

5. The plaintiff filed a Notice of Appeal on June 15, 2021 intending to appeal against the whole decision and requested for certified copies of the proceedings. It contended that the documents were not available and the plaintiff was therefore unable to comply. That on the day the ruling was delivered, the plaintiff’s advocate was unable to log into the court session.

6. The defendant opposed the application vide the replying affidavit sworn by himself on June 18, 2021. He contended that the plaintiff had not demonstrated that it had a prima facie case to justify the granting of the orders it had failed to attach a draft memorandum of appeal and that no security had been offered.

7. The second application dated May 19, 2021 was by the defendant. It was brought under Section 1A, 1B, 3A, and Order 3, Rule 2(b), (c) & (d) Order 51 Rule 1, 3 & 4 of the Civil Procedure Rules.

8. It sought that the suit be dismissed for violation of the provisions of Order 3 Rules 2(b) (c) & (d) of the Civil Procedure Rules. That the plaintiff be compelled to forthwith and unconditionally release to the defendant the original title deed of the land parcel number Machakos/Kiandani/2699. Further, the defendant sought leave to amend his counter claim dated October 25, 2019 and file further additional documents and witness statements within 21 days from the date of the order.

9. The application was supported by the affidavit of Samuel Musau Ndunda sworn on May 19, 2021. He averred that the plaint filed on 7/08/2003 and amended on 6/11/2009 was fatally defective as it was never accompanied with the list of documents, list of witnesses and witness statements as required under order 3 rule 2(b)(c) & (d) of the Civil Procedure Rules.

10. The application was opposed vide grounds of opposition dated June 24, 2021 and the replying affidavit sworn by Lawrence Karanja on June 24, 2021. It was contended that the amended plaint was duly filed in court in accordance with the court’s rules.

11. Both parties filed their respective submissions which the Court has considered.

12. Order 43 Rule 1 of the Civil Procedure Rules provides: -“An appeal shall lie as of right from the following orders and rules under the provisions of section 75(1) (h) of the Act…”

13. The order sought to be appealed against are those that require leave. Granting of leave is in the discretion of the Court which like in all other discretions must be exercised judiciously and not capriciously.

14. In Sango Bay Estates Ltd v Dresdner Bank AG [1971]EA 17 at 20 Spry V P held that: -“I turn to the application itself which can, I think, be disposed of very briefly. As I understand it, leave to appeal from an order in civil proceedings will normally be granted where prima facie it appears that there are grounds of appeal which merit serious judicial considerations but where, as in the present case, the order from which it is sought to appeal was made in the exercise of a judicial discretion, a rather stronger case will have to be made out.”

15. In J. P. Machira T/A Machira & Co Advocates Vs Wangethi Mwangi & Another, Ca No Nai 433 Of 2001, the Court of Appeal held: -“The considerations for the grant or refusal of an application for leave to appeal (a matter for the discretion of the Court) are few but familiar and we consider it desirable and useful to have them briefly stated. The Court will only refuse leave if satisfied that the applicant has no realistic prospects of succeeding on the appeal. The use of the word “realistic” makes it clear that fanciful prospect or an unrealistic argument is not sufficient. When leave is refused, the Court gives short reasons which are primarily intended to inform the applicant why leave is refused. The court can grant the application even if it is not so satisfied. There can be many reasons for granting leave even if the Court is not satisfied that the appeal has no prospects of success…There must, however, almost always be a ground of appeal which merit serious judicial consideration.”

16. In the present case, the plaintiff did not attach the draft memorandum of appeal for the intended appeal. This denies this Court the opportunity to determine what will be urged in the Court of Appeal and whether the same merit serious judicial consideration.

17. The grounds set out in the body of the Motion and affidavit are that; the plaintiff was unable to comply with the court’s orders for production of documents due to the lapse of time between filing the suit and the granting of the orders. That the documents were not available for production.

18. What the Court feels is that the plaintiff is re-litigating the application for production of documents. That has already been determined. Inability to comply with a court order is not a ground for appeal. Consequently, the prayer for leave is declined.

19. As regards the defendant’s application, he sought that the plaintiff’s suit be dismissed for failure to be accompanied by a list of documents, list of witnesses and witness statements. I wish to emphasize that Article 159(2)(d) calls upon this Court to administer justice without undue regard to procedural technicalities.

20. In Nicholas Kiptoo Arap Korir Salat Vs Independent Electoral and Boundaries Commission & 6 Others(2014) Eklr, it was held that: -“The power to strike out pleadings, and in the process deprive a party of the opportunity to present his case has been held over the years to be a draconian measure which ought to be employed only as a last resort and even then only in the clearest of cases ....Deviations from and lapses in form and procedures which do not go to the jurisdiction of the court, or to the root of the dispute or which do not at all occasion prejudice or miscarriage of justice to the opposite party ought not be elevated to the level of a criminal offence attracting such heavy punishment of the offending party, who may in many cases be innocent since the rules of procedure are complex and technical…”

21. The prayer to dismiss the plaintiff’s suit and the consequential prayer to order the release of the original title to the defendant is declined.

22. As regards the prayer to amend the counter-claim and file a further list of documents and witnesses, the defendant did not raise any grounds either in its supporting affidavit or in his submissions to support that prayer.

23. The defendant did not also attach the supplementary list of the documents and witness statements that he sought to add. The Court cannot therefore discern the relevance of the documents vis a vis the prejudice that would be visited upon the plaintiff upon the granting of such leave.

24. This also applies to the prayer for amendment. The prayer is being made too late in the day. I am aware that applications for amendment should be allowed liberally before trial. However, when such an application is being after 22 years of the case pending in court and there are no good reasons why the delay, the same should not be entertained. Justice delayed is justice denied. The parties should get on with the trial of the suit.

25. Accordingly, both applications dated 19/5/2021 and 16/6/2021 are without merit. They are dismissed with costs.It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 9TH DAY OF SEPTEMBER, 2022. A. MABEYA, FCIArbJUDGE