Kenya Oil Company Limited v Jayantilal Dharamshi Gosrani [2014] KECA 460 (KLR)

IN THE COURT OF APPEAL

AT NAIROBI

(CORAM: GITHINJI, MARAGA & WARSAME, JJ.A.)

CIVIL APPEAL NO. 324 OF 2005

BETWEEN

KENYA OIL COMPANY LIMITED................................APPELLANT

AND

JAYANTILAL DHARAMSHI GOSRANI...….…...........RESPONDENT

(An appeal from the Ruling and Order of the High Court of Kenya atNairobi (Ransley, J.) dated 25thOctober, 2005

in

H.C.C.C. No. 39 of 2005)

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JUDGMENT OF THE COURT

This is an appeal from the “order” of the High Court (Ransley,J.) whereby the learned Judge rejected an application to strike out the plaint and instead gave leave to the respondent herein to file a verifying affidavit within seven days.

By a plaint dated 21st  January 2005, and date stamped 21st  January 2005 by the High Court, the respondent claimed from the appellant shs. 101,574,900/-  as anticipatory damages allegedly as a result  of breach of a lease; exemplary and punitive damages; costs; and interest.

The plaint was  accompanied  by a  verifying affidavit of the respondent allegedly sworn on 24th January 2005 before Njeri Onyango – a Commissioner of Oaths. The verifying affidavit had a date stamp of the High Court indicating that it was received on 21st January 2005.

The appellant filed a defence denying  liability.   In addition, the appellant averred  that the plaint should be struck  out as  the verifying affidavit did not comply with provisions  of Order 7 Rule 3(2)of the Civil Procedure  Rules(CPR) and alternatively, that the plaint and the verifying affidavit should be struck out as the Commissioner for Oaths before whom the oath was purportedly  taken did not truly state in the juratthe date on which the oath was so taken.

The respondent filed a  reply to the defence. In respect to the verifying affidavit, the respondent averred that the same was not defective as the conflict in dates was occasioned by the fact that whereas the plaint and verifying affidavit were filed on 24th January 2005, the court stamp indicated the erroneous date of 21st  January 2005. The respondent referred to the cheque for payment of the filing fees and the court receipt, which were both dated 24th January 2005.

Subsequently  on 17th March 2008 the appellant  filed a  notice of motion under Order 7 Rule 3of the CPR and under the inherent powers of the court and prayed that the plaint be struck out on either of the two grounds, namely;

“(i)   the  verifying  affidavit   does not comply with  the provisions  of  order 7 rule  3(2) Civil Procedure  Rules,  or alternatively.

(ii)  The Commissioner of Oaths before whom the oath relating  to the said affidavit  as purportedly  taken did not truly state in the jurat  the date on which such oath was taken.”

The respondent filed grounds of opposition and a replying  affidavit sworn by Leonard Maingi,an advocate  from  the firm  of  advocates  acting for  the respondent.  Mr. Leonard Maingi reiterated that the date of filing indicated in the court stamp was erroneous and deposed that the error had been corrected by the court and the plaint and verifying affidavit correctly stamped as having  been filed on 24th January, 2005.

At the hearing  of the application  before  the High Court on 25th October 2005, Mr. Esmail,learned counsel for the appellant, was allowed to cross-examine the respondent who stated that he signed the verifying affidavit on 24th January 2005 in the offices of Mr. Leonard Maingi and in the presence of Mr. Leonard Maingi and left it there.  Thereupon, Mr. Esmail asked the court to strike out the plaint and the learned Judge made the following order:

“The verifying  affidavit  was not duly  attested.   In  the result, I order the plaintiff  to swear a verifying affidavit before a Commissioner of Oaths who should attest his signature.  I do not in the exercise of my discretion strike out the plaint. The verifying  affidavit  to be filed within  seven days.”

The learned Judge granted the appellant leave to appeal.

A proper verifying affidavit was sworn on 25th October 2005 and filed on 26th October 2006 within the stipulated seven days.

It is a common  ground  that the respondents ultimately prosecuted the suit and judgment was entered in his favour and that the appellant subsequently filed Civil Appeal No. 328 of 2010 against that judgment which civil appeal is pending for hearing in this Court.

The appellant states in the grounds of appeal that the learned Judge did not have any discretion to refuse to strike out the plaint and if he did, he exercised his discretion injudiciously and on wrong principles in the circumstances of the case where a false document had been deliberately filed in contempt of the court.

The appellant  further states  that if  the learned  Judge  had jurisdiction  to extend the time for filing a verifying affidavit, he exercised his discretion on wrong principles and or unjudiciously in the circumstances of these case.

The application for striking out the plaint was brought under old Order VII which provided in a subrule 1(2) and 1(3) thus:

“2.   The plaint shall  be  accompanied   by  an affidavit sworn by the plaintiff verifying the   correctness   of  the averments contained in the plaint.

3. The court may of its own motion or on application  of the defendant order to be struck out any plaint  which does not comply with subrule 2 of this rule.”

In Research International East Africa Limited v. Arisi and Others [2007] (1) EA 248this Court explained the purpose of subrule 1(2) and at page 363 para f where it stated thus:

“The superior  court however had a discretion. It  had jurisdiction instead of striking out the plaint to make any other appropriate orders such as giving the plaintiff another opportunity to comply with the rule 11. ”

The requirement that the plaint should be accompanied by an affidavit is retained in the renamed Order 4 Rule (1) (2)of the Civil Procedure Rules 2010. However, the new rule does not require the affidavit to verify all the contents of the plaint. The only particulars to be verified by the affidavit are averments that there is no other suit pending; that there have been no previous proceedings in any court between the plaintiff and defendant; and that the cause  of action relates to the plaintiff named in the plaint. The provisions of Rule 1(6) of Order 4, like the old Rule 1(3), gives the court power to strike out a plaint which is not accompanied by a verifying affidavit containing the stipulated particulars.

The power to strike out the plaint or [counterclaim] under the Rule is not mandatory but permissive.  The phrase “the court may…”in Order 1(3)and in the new Order 1(6)gives the court discretion whether or not to strike out a plaint as the court held in the Arisicase (supra).  (The submission of Mr. Esmail that the court had no discretion is with respect therefore erroneous.

The broad principle, reiterated by this Court in D.T. Dobie & Company (K)Ltd. v.Muchina [1982]KLR 1)is in essence that the discretion of the court to strike out pleadings for various reasons  such  as failure to disclose  a reasonable cause of action should be used very sparingly and that a plaintiff should not be driven from judgment seat unless the case is unarguable, apply with more force to discretion to strike out a plaint for want of a verifying affidavit. We say with more force because the omission to file a compliant verifying affidavit does not go to the root of the claim.

The admission  by the respondent  when he was  cross-examined  by Mr. Esmail that he did not appear before a Commissioner of Oaths for attesting of the affidavit is that the plaint was not accompanied by an affidavit as required.  That was a procedural  error which the court could, in exercise of its discretion, correct at any time before this suit was heard.

The confusion of the date  of filing  the suit  was  sufficiently  explained although it is not a ground  of the application. We are satisfied that the learned Judge exercised his discretion judicially.

Further, which is  so fundamental  to this  appeal is  that it arises  from an interlocutory decision. It is clear that during the pendency of this appeal, the matter proceeded to full hearing and determined.  The present appellant has already filed an appeal against the decision. What the present appeal intends to achieve  as per the submission of Mr. Esmail advocate is to upset and/or set aside the decision of the High  Court and subsequent  appeal pending before  this  Court.   In  our understanding, the present appeal which is based on an interlocutory appeal is a direct assault on the decision of the High Court which is subject of pending appeal. It is also a collateral attack on the administration of justice.

In our humble view, to allow the appeal is to circumvent  the determination of the matter on merit and to render the pending  appeal futile. A court of law cannot allow such a route to be used to defeat the matured rights of the respondent.

Another important factor that persuades  us to conclude  that the present appeal is an abuse of the court process is that the appellant took its sweet time to prosecute the appeal from 2005. That is a manifest indication that the sole object of which  the present appeal was filed is to convolute and complicate issues for the court and other parties directly affected in the outcome of this appeal. The only irresistible  conclusion  to arrive at from the conduct of  the appellant  in  not prosecuting  the appeal before  the matter  was determined  in the High Court on merit, means that the appellant had no quarrel at all with the ruling of 25th October, 2005, particularly when at no stage of the proceedings at the trial court, it did not seek and obtain a stay pending the hearing and determination of the present appeal. The appellant willingly and without any force participated in the trial before he High Court and after the decision which is adverse to it was rendered,  devised  a two prong assault  strategy,  namely file  an appeal  and resuscitate  its  forgotten appeal.

The question now is if the appellant was apparently happy with proceedings to full hearing before the trial court while the alleged defect was subsisting, why is it now prosecuting an appeal filed in 2005, which could overturn and determine the matter fully.  To make worse, the appellant has filed an appeal against the decision of the trial Judge. We have not been told whether any application was made to arrest the said judgment pending the outcome of the present appeal.  The answer is indeed not far from the conduct of the appellant who decided to stay away from this appeal, which was filed in 2005, only to start a belated  journey to upset the trial Judge’s decision through the back door. To say the least such a conduct is not only reprehensible but unimpressed in the mind of an attentive judicial officer. It is unjust, inequitable  and a waste  of judicial time  and resources. To sustain the present appeal would jeopardise the long and tedious time the trial Judge put in hearing and determining  the dispute. It  would also  render futile the appeal preferred against the said decision.  Therefore, in the circumstances of this case, we think the appeal was filed and prosecuted in bad faith and in a manner to abuse the administration of Justice. We decline such a demonstration.

For those  reasons, we  find no merit in this  appeal and we  accordingly dismiss it with costs to the respondent.

Dated and delivered at Nairobithis 11thday of July,2014.

E.M. GITHINJI

………………………

JUDGE OF APPEAL

D. K. MARAGA

………………………

JUDGE OF APPEAL

M. WARSAME

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JUDGE OF APPEAL

I certify that this is a true copy of the original

DEPUTY REGISTRAR