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|Case Number:||Civil Case 476 of 2010|
|Parties:||Mara Hippo Tented Camp Limited v Abdulrazak Hussein Omar|
|Date Delivered:||31 Jul 2014|
|Court:||High Court at Nairobi (Milimani Law Courts)|
|Judge(s):||Jonathan Bowen Havelock|
|Citation:||Mara Hippo Tented Camp Limited v Abdulrazak Hussein Omar  eKLR|
|Court Division:||Commercial Tax & Admiralty|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL & ADMIRALTY
CIVIL CASE NO. 476 OF 2010
MARA HIPPO TENTED CAMP LIMITED ….....………..…….. PLAINTIFF
ABDULRAZAK HUSSEIN OMAR ……….……………….….. DEFENDANT
R U L I N G
“i. THAT the 1st Defendant/Applicant is owed inter-alia monies in the amount of Kshs. 7,793,646.00 by the Plaintiff, as more particularized in the Statement of Defence and Counter-claim filed herein;
ii. THAT the Plaintiff is enjoying possession and the use of the motor vehicleS the subject matter of this suit without fulfilling its obligation to pay for the Motor Vehicles Registration Numbers KBH 660X, KBD 176U, KBE 706V, KBG 583K, KBE 979E and spares among other items in full;
iii. THAT the vehicles in question are wasting away and depreciating and the 1st Defendant will have no means of recovering his dues should He succeed in the suit as the Plaintiff has ceased all commercial activities and is in no financial position to make good any Judgment that may be entered in this court in favour of the 1st Defendant;
iv. THAT the Plaintiff attempted and failed to acquire an injunction to prevent the repossession of the above mentioned motor vehicles by way of a chambers summons dated 9th July 2010, which was heard and determined before the Honourable Justice Kihara Kariuki, wherein the Judge held that the Plaintiff failed to provide sufficient material evidence establishing a prima facie case with a probability of success for a number of reasons including:-
v. THAT the Honourable Justice Kariuki in his ruling also noted that, “Indeed, no receipts issued by the Defendant for the payment alleged have been produced nor bank statements or cheques issued by the plaintiff to the Defendant to establish that the payments have in fact been made”. Also stating that the Plaintiff cannot have it both ways, keeping the vehicles and not paying for them;
vi. THAT since the Plaintiff was denied injunctive orders by this court against the 1st Defendant, it is only logical that this court ought to take the next step and grant the orders sought to complete the reason and purpose of its earlier orders dated 3rd day of November 2010;
vii. THAT the 1st Defendant has made several attempts to recover the motor vehicles in question and has been continually aggravated by the Plaintiff’s evasive and obstructive actions, making it impossible to repossess the vehicleS that are rightfully the 1st Defendant’s;
viii. THAT the 1st Defendant has attempted to report the matter to the police, who consequently advised that they require a court order to take up the matter. Therefore, the 1st Defendant humbly stands before this Honourable Court praying for an order to recover the vehicles that rightfully belong to the 1st Defendant; and
ix. THAT without the court’s intercession the 1st Defendant/Applicant stands to lose monies rightfully owed to him by the plaintiff without the courts intersession”.
“Lastly, the Plaintiff cannot have it both ways i.e. keep the vehicles without payment therefor – the balance of convenience must therefore lie with the Defendant.”
The advocates for the Plaintiff have submitted before Court that they believed that its injunction application having been dismissed by the learned Judge as above, the first Defendant had repossessed the said motor vehicles. Exhibit “BC-2” annexed to the Replying Affidavit is a Notification of Sale of Movable Property dated at 17th March 2012 as between the first Defendant and the second Defendant but only relates to one motor vehicle being Isuzu Giga Registration No. KBE 706V. There is no evidence before this Court in relation to any other vehicle having been repossessed by the first Defendant.
“Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it; they define the issues for decision in the ligigation and thereby enable the relevance and admissibility of evidence to be determined at the trial; and they give a defendant an understanding of a plaintiff’s claim in aid of the defendant’s right to make a payment into court. Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings. But where there is no departure during the trial from the pleaded cause of action, a disconformity between the evidence and particulars earlier furnished will not disentitle a party to a verdict based upon the evidence. Particulars may be amended after the evidence in a trial has closed …..”.
This viewpoint is supported in the local case of Galaxy Paints Co. v Falcon Guards Ltd C.A 219 of 1998, in which it was held inter alia:
“i. it is trite law as confirmed by the provisions of Order XIV of the Civil Procedure Rules that issues for determination in a suit generally flow from the pleadings.
ii. unless the pleadings are amended, the trial court as per requirement of order XX Rule 4 Civil Procedure Rules may only pronounce judgment on the issues arising from the pleadings or such issues as the parties have framed for the court’s determination.”
Of course Order XX rule 4 has now been replaced by Order 21 rule 4 of the Civil Procedure Rules, 2010 which reads:
“Judgements in defended suits shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision.”
I consider that the same position applies in relation to Rulings delivered by Court.
“We do not know that these cases are really of any assistance to the Appellant in this matter. As was said in the case of Bhag Bhari v. Medhi Khan (1965) 2 EA 94 at 104 Letters H to I:
‘The rules of procedure are designed to formulate the issues which the court has to determine and to give fair notice thereof to the parties. Were it not that the Judge had seen fit to determine a number of issues which were never raised in the originating summons, I should not have thought it necessary to state that a Judge has no power to determine an issue which was not before him. If authority were needed for that proposition, I would refer to Gandy v Caspair Air Charters Ltd, supra. It is for this reason that the court will freely grant applications for amendment if they are made at the proper time, do not create injustice and do not change the suit into one of a substantially different character …..’
We would endorse the well-established view that a Judge has no power to decide an issue not raised before him but having said so, we must revert to the question of how or the manner in which issues are to be raised before a Judge. In our view, the only way to raise issues before a Judge is through the pleadings and as far as we are aware, that has always been the legal position. All the rules of pleading and procedure are designed to crystallize the issue which a Judge is to be called upon to determine and the parties are themselves made aware well in advance as to what the issues between them are”.
DATED and delivered at Nairobi this 31st day of July, 2014.
J. B. HAVELOCK