Kinyanjui Njuguna & Co. Advocates v Invesco Assurance Co. Ltd, Diamond Trust Bank Limited; Cooperative Bank Limited, Kenya Commercial Bank Limited, Spire Bank Limited, Housing Finance Company Limited, Sidian Bank Limited & Jamii Bora Bank Limited (Garnishee) [2022] KEHC 1671 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITUI

HIGH COURT MISCELLANEOUS APPLICATION NO. 119 OF 2018

KINYANJUI NJUGUNA & CO.

ADVOCATES................................................DECREE HOLDER/RESPONDENT

-VERSUS-

INVESCO ASSURANCE CO. LTD.............................JUDGEMENT DEBTOR

DIAMOND TRUST BANK LIMITED...................................1ST GARNISHEE

COOPERATIVE BANK LIMITED......................................2ND GARNISHEE

KENYA COMMERCIAL BANK LIMITED.......................3RD GARNISHEE

SPIRE BANK LIMITED..............................4TH GARNISHEE/APPLICANT

HOUSING FINANCE COMPANY LIMITED...................5TH GARNISHEE

SIDIAN BANK LIMITED....................................................6TH GARNISHEE

JAMII BORA BANK LIMITED.........................................7TH GARNISHEE

R U L I N G

1. This Ruling is in respect to an application dated 26th February, 2020 brought by the 4th Garnishee, Spire Bank seeking the following Orders: -

i. Spent

ii. Spent

iii. That this Hon. Court be pleased to set aside the Orders of 26th September 2019 and reinstate the application dated 8th July, 2019 for hearing on the merits

2. The grounds as listed on the face of the application are as follows: -

a) That the application dated 8th July, 2019 was slated for hearing on 26th September, 2019.

b) That the Counsel for the applicant mis-diarized the date for 27. 09. 2019 as a result of which he failed to attend court on the appointed date.

c) That errors of advocate should not be visited upon a litigant.

d) That at the time of hearing, the decree holder had not responded to the application which gave the impression that they had abandoned the claim against the 4th Garnishee.

e) That the decree holder has now instructed the auctioneers to attach the application which he contends is unlawful.

f) That the applicant’s application was meritorious as the Orders of 25. 06. 2019 were obtained in its absence and it was condemned unheard.

3. The application is supported by the affidavit of the applicant’s counsel, Mr. Antony Mugo sworn on 26. 2.2020, Mr. Mugo has mainly reiterated the above grounds adding that the 4th garnishee/applicant has demonstrated that it has no funds due to the Judgement Debtor/garnishee and that the application dated 8. 07. 2019 has high chances of success.

4. The applicant avers that it supplied a statement of account to the respondent showing that it was not holding any funds in favour of the Judgement Debtor.

5. It submits that this court has discretion to reinstate dismissed application and pleads with this court not to punish the applicant on account of mistake of Counsel. It relies on the case of Lucy Bosire vs Kehancha Division Land Dispute Tribunal & 2 Others (2013) eKLRwhere the court reinstated an application which sought setting aside of the land tribunal’s award after the application was dismissed for non-attendance. The court held the view that the Respondents would not suffer any prejudice if the application was allowed. Further while echoing the overriding objective of just determination of proceedings, the court held that mistake of counsel ought not be visited on their clients when the situation can be remedied by costs

6. The applicant further submits that its application should be reinstated as it is arguable in nature and has high chances of success. He submits that the application should be allowed as it seeks to set aside the garnishee order absolute made on 25th June 2019 as it was not represented in court when the order was issued.

7. The applicant submits that the applicant does not hold any money on behalf of the judgment debtor and further that in any event the judgment debtor has been declared insolvent.

8.  The applicant further avers that the delay in prosecuting the application was occasioned by factors that were beyond its control. The applicant also contends that the only time it was granted orders of stay of execution was on 10th July 2020 by Justice Odunga following which they attended court on 28th July 2021.

9. The respondent in his submissions avers that he opposes this application and relies on a replying affidavit sworn on 3rd August, 2020.

This court was unable to locate the said replying affidavit and only found the following replying affidavits by Seth Khisa;

i. Replying affidavit sown on 23. 07. 2020 in opposition to application dated 8. 07. 2020.

ii. Replying affidavit sworn on 2nd June, 2021 in opposition to application dated 26. 05. 2021.

iii. Replying affidavit sworn on 1. 09. 2021 in opposition to the application dated 3rd August 2021.

10. The Respondent in his submissions dated 20. 09. 2021 submits that this application is re-judicata. He points out that this application was filed after a subsequent one dated 8. 07. 2020 was abandoned after obtaining interim orders from court.

11. He further contends that the applicant filed another application dated 26th May 2021 which was dismissed by the court vide the ruling of 29th July 2021. It avers that the applicant is seeking to revisit its initial application after the its subsequent ones were dismissed and has cited the case of Accredo AG & 3 Others vs Steffano Uccelli & Another (2019) eKLRwhere the court of Appeal dismissed an appeal after it found that the matter pertaining to the 2nd Appellant’s shareholding and directorship had already been heard and determined by the Court of Appeal. The Court of appeal called the 2nd Appellant out for trying to use judicial craftsmanship while drafting its pleadings even though it was seeking ventilation of matters that had already been decided on.

12. The Respondent submits that the Applicant ought to have had the present application heard together with the applications dated 26th May 2021 and 25th May 2021. Counsel has placed reliance on the case ofUhuru Highway Development Limited v Central Bank of Kenya & 2 others [1996] eKLRwhere the court pointed out that parties must bring before court, exercising reasonable diligence, all points that they could take and that points not taken then cannot be taken again as the same would amount to an abuse of the process of Court.

13. The Respondent also submits that the application is unmerited as it does not specify the provisions of law that the Applicant was relying on. Finally, that the court ought not exercise its discretion in favour of the applicant as they have not been vigilant in prosecuting their matters.

14. This court has considered this application and the response made. The applicant in this matter has really pushed the discretion of this court to the limit by its conduct whether through counsel or itself. The numerous applications filed and pending in this matter are due to acts of omission and commission by the applicant herein. To begin with directions issued in respect to the application herein, on 16. 09. 2021. This court issued the following directions.

‘‘……………………… I direct that the application dated 26th February, 2021 be canvassed first before other applications are canvassed. Towards that end, I direct Counsel to put in their written submissions. The applicant has 3 days from today to file and serve its submissions and upon service the respondent shall have same period to respond…………………………….’’

Parties to strictly adhere to the timelines………..and any party in default shall be deemed not to have anything to submit on.’’

15. As per the above directions, the Applicant ought to have filed its submissions on or before 19th September 2021. However, the submissions dated 9th September 2021 (a date before parties appeared in court) were filed on 21st September 2021 outside the prescribed timelines. In the case of Beatrice Wanjiru Kamuri versus John Kibira Muiruri [2016] eKLR, the court allowed filing of a defense outside the prescribed timelines but cautioned the Defendant as follows;

‘‘I on my part, have little sympathy for persons who deliberately file their documents late. If such party does not file his documents within time, he needs to give reasons as to why his documents need to be admitted, or else there is a risk that the same may be struck out. I agree, that striking out is an extreme measure which should only be resorted to where it is clear that a party is abusing the court process and attempting to steal a march on the other party. But that does not mean that parties ought to take for granted what is prescribed in the rules.’’

16. The applicant is asking for reinstatement of its application dated 8. 07. 2019. The fact that the said application was dismissed for applicant’s a demonstration of lack of seriousness on its part.

17. The respondent has attacked this application on the ground that it is res judicata in view of this court’s Ruling dated 29th July, 2021.

The said Ruling of this court was in relation to 2 applications heard together which move applications dated 25th May 2021 by an auctioneer that was seeking to execute and another dated 26th May 2021 by the applicant herein. The applicant in the application dated 26th May 2021 was seeking a stay of execution pending a purported appeal. This court found no merit because there was no appeal filed amongst other reasons advanced in that ruling.

18. In this application the applicant is also seeking stay of execution based on the substantive prayer which is reinstatement of its application dated 8. 07. 2019.

19. The principle of re judicatais found in Section 7 of the Civil Procedure Act which provides that:

“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”

23. In the case of the Independent Electoral and Boundaries Commission v Maina Kiai & 5 others ([2017] eKLR), the Court of Appeal held that:

“Thus, for the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must be satisfied, as they are rendered not in disjunctive but conjunctive terms;

a) The suit or issue was directly and substantially in issue in the former suit.

b) That former suit was between the same parties or parties under whom they or any of them claim.

c) Those parties were litigating under the same title.

d) The issue was heard and finally determined in the former suit.

e) The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.”

24. The Court explained the role of the doctrine as follows;

‘‘The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the spectra of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as a pragmatic and commonsensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and fora, to obtain at last, outcomes favorable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute or calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice.”

20. It is evident going by the above that this application cannot fail on the principle of res judicata.

This court is yet to render itself on the merits of reinstatement of the application dated 8th July, 2019 and therefore the doctrine does not apply.

21. This court as I have noted above finds that the applicant has really been the author of the current misfortunes facing whether by itself or through Counsel but be that as it may, this court has pondered over this matter and despite unfavorable conduct of the applicant, this court is unable to disregard the provisions of Order 23 Rule 1 of the Civil Procedure Ruleswhich provide as follows: -

‘‘ A court may, upon the ex parte application of a decree- holder, and either before or after an oral examination of the judgment- debtor, and upon affidavit by the decree holder or his advocate, stating that a decree has been issued and that it is still unsatisfied and to what amount, and that another person is indebted to the judgment-debtor and is within the jurisdiction, order that all debts (other than the salary or allowance coming within the provisions of Order 22, rule 42 owing from such third person (hereinafter called the “garnishee”) to the judgment-debtor shall be attached to answer the decree together with the costs of the garnishee proceedings; and by the same or any subsequent order it may be ordered that the garnishee shall appear before the court to show cause why he should not pay to the decree- holder the debt due from him to the judgment debtor or so much thereof as may be sufficient to satisfy the decree together with the costs aforesaid.’’

22. The applicant is disputing service of hearing date of 25th June 2019 when the order absolute was issued by the court. The record does show that the applicant was not in court on the said date. The Respondent on the other hand has not strictly proven that they indeed served the applicant with the hearing notice date of 25th June 2019. Further before the 25th June, the matter was previously in court on 25th May 2019 and from the record, it is not clear whether the applicant was present in court.

23. This court being alive to the dictates of Article 48 of the Constitution is minded to make such Orders that facilitates access to justice with a view to meeting the ends of Justice as stipulated under Section 3A & 63 (e) of the Civil Procedure Act.

It is only on that basis that I find merit in the application dated 26th February 2020 under Order 51 Rule 15. This court grants prayer (iii) thereof but this perhaps one of those occasions when the victor is condemned to pay costs of the application to the respondent and the reason is fairly simple. The applicant finds itself where it is due to inaction or acts of omission. He should therefore not expect to have its cake and eat it at the same time. It is condemned to pay costs of this application.

DATED, SIGNED AND DELIVERED AT KITUI THIS 10TH DAY OF MARCH, 2022.

HON. JUSTICE R. K. LIMO

JUDGE