Giriama Ranching Company Limited v Development Bank of Kenya & Garam Investments Auctioneers [2018] KEHC 3081 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

CIVIL SUIT NO 57 OF 2018

GIRIAMA RANCHING COMPANY LIMITED...............PLAINTIFF/APPLICANT

VERSUS

DEVELOPMENT BANK OF KENYA

GARAM INVESTMENTS AUCTIONEERS.........DEFENDANTS/RESPONDENTS

RULING

1. This matter was coming up for highlighting of submissions today. However, M/s Wambani, counsel  holding brief  for Mr Makambo, counsel for  the Defendant/Respondent has been instructed to apply  for an adjournment on the ground that the Respondent’s counsel was  served with written submissions and a further affidavit on 24. 8.2018  which was a week after the  stipulated  period  which had been given by  the court and he required leave to file a  supplementary affidavit so as  to respond to  the  new issues which had been raised in the further  affidavit  within 7 days.

2. Mr. Kenga objected to this argument that there was no agreement in  the e-mail communication he received from Mr Makambo that the  matter be adjourned. He also  argued that the Respondent,  having  been given 14 days  leave  to file and serve their  written submissions,  on 1. 8.2018, have had sufficient  time within  which they would have complied. And that even if they were served with submissions. On  24. 8.2018, this brings the period to 25 days within which they would  have responded to the submissions and further  affidavit. Mr Kenga further argues that the Respondent have no right under the  provisions of Order 51 of the Civil Procedure rules to file a  supplementary affidavit.

3. In considering the application by the Respondent’s counsel and the  objection by the applicant’s counsel, I have considered  the issues in  question and find that  there is need  for substantive  justice to be   arrived at by this court. This can only be done if parties are granted an  opportunity to address the issues in the case that is before court. I note   that there has not been  no inordinate delay is in this  case.

4. Also, on the issue of the Respondent being granted leave to file a  supplementary affidavit, the same is denied. Instead, the Respondent  is granted 7 days leave to file and serve their written submissions   within which the new issues alleged to have been raised in the further  affidavit will be addressed. Failure to file and serve the said written  submission by the Respondent, will cause the Respondent to lose   their right to do so.

Mention on 23. 10. 2018 for highlighting. The interim orders be and are  hereby extended.

Ruling read, signed and dated this 18th day of  September, 2018.

LADY JUSTICE D. O. CHEPKWONY