HAMILTON HARRIS & MATHEWS V JUJA COFFEE EXPORTERS LTD

1. The application before this Court is a Notice of Motion dated 24th February, 2023 brought under the provisions of Sections 1A, 1B, 3 & 3A of the Civil Procedure Act, Cap 21 and Order 12 Rule 7 of the Civil Procedure Rules, 2010. The client seeks the following orders -
(i) That this application be heard in priority to the Garnishee’s Notice of Motion dated 9th June, 2022 and the Advocate/Applicant’s Notice of Motion dated 11th March, 2022;
(ii)  That the following orders made on 4th January, 2023 by Hon. Stephany Githongori be set aside;
a) That the respondent’s directors do provide the applicant with the respondent’s books of accounts at least 7 days before the hearing date of 2nd March, 2023;
b) That the Garnishee’s application dated 9th June, 2022 and the Advocate’s application dated 11th March, 2022 be heard on 2nd March, 2023 before Mabeya J; and
(iii) That the costs of this application be awarded to the client/respondent.
2. The application is premised on the grounds on the face of the Motion and is supported by an affidavit sworn on the same day by Nurein Tahir Sheikh Said, one of the client’s directors. In opposition thereto, the Advocate filed a replying affidavit sworn on 21st March, 2023 by Mugambi Mutua, learned Counsel for the Advocate.
3. The instant application was canvassed by way of written submissions. The client’s submissions were filed on 13th April, 2023 by the law firm of Muriu Mungai & Company Advocates LLP, whereas the Advocate’s submissions were filed by the law firm of Hamilton Harrison & Mathews Advocates on 27th April, 2023.
4. Mr. Kongere, learned Counsel for the client submitted that Mabeya J., on 26th May, 2022 granted a garnishee order absolute against the garnishee and made an order for the examination of the client’s directors but the said order did not require the client’s directors to produce any books. He further submitted that vide a Notice of Motion application dated 9th June, 2022, the garnishee applied to set aside the garnishee order absolute and Mabeya J., directed that the garnishee’s application be heard first before any examination of the client’s directors.
5. Counsel stated that the Court fixed this matter for mention before the Deputy Registrar on 4th January, 2023 and that on 30th December, 2022, a notice was sent by Court via email to litigation@mmcasafo.com, among many other addresses. Further, that the Advocate’s Counsel forwarded the said notice to the client’s Counsel on 3rd January, 2023 at 11.23 a.m. Mr. Kongere stated that this matter was mentioned on 4th January, 2023 in the absence of the Client’s Counsel, where the Deputy Registrar made an order for the client’s directors to produce books of accounts and for the pending applications to be heard together on 2nd March, 2023.
6. It was stated by Counsel that in view of the foregoing, there are three reasons why the orders made by the Deputy Registrar on 4th January, 2023 should be set aside. First, that the client was not given a reasonable opportunity to be heard since the notice from Court was sent to litigation@mmcasafo.com which email address does not appear on the client’s pleadings, as from its pleadings, all emails should be sent to mmcmsa@mmcasafo.com. He further stated that it must have been obvious to the Advocate that the notice had been sent to the wrong email address and that is why the Advocate’s Counsel forwarded the same notice to the correct email address on 3rd January, 2023.
7. Mr. Kongere cited the case of Nyongesa & 4 others v Egerton University College [1990] eKLR and submitted that parties must be heard before any decision affecting them is made and that can only be achieved by giving notice to the parties who would be affected. He contended that the notice sent by the Court to the wrong email address could not give any notice to the client and the said failure cannot be ameliorated by the email forwarded by the Advocate’s Counsel on 3rd January, 2023, since it is never just a question of giving notice but rather, a matter of giving adequate notice. He stated that the client’s Counsel commenced his leave on 3rd January, 2023 and resumed on 23rd January, 2023 hence a notice sent on 3rd January, 2023 was overly ineffective. To that end, he relied on the case of Republic v National Land Commission & another Ex Parte Farmers Choice Limited [2020] eKLR, where the Court found a day’s notice to be a violation of the rules of natural justice.
8. Secondly, Mr. Kongere stated that the orders in issue were made during a mention date. He referred to the case of Africa Centre For Open Governance & another v John Harun Mwau & 2 others [2020] eKLR and submitted that no substantive orders can be made during a mention, unless it is with the consent of the parties. He stated that for the said reason, it is irrelevant that the Deputy Registrar may have made an order that seemed efficacious in the circumstances but the said order was not efficacious as the hearing was scheduled for 2nd March, 2023, which was outside the service week which elapsed on 20th January, 2023. He submitted that the net effect of the Deputy Registrar’s orders was to unlawfully reverse the orders of Mabeya J., who had directed that the garnishee’s application be heard before the client’s directors’ examination.
9. Mr. Kongere submitted that the instant application has not been brought after inordinate delay because the events of 4th January, 2023 were communicated to the client’s Counsel on 30th January, 2023 and the application herein was filed on 24th February, 2023. He relied on the case of Juja Coffee Exporters Limited v Charles Okungu Odhiambo & 28 others [2019] eKLR where it was held that procedure is unimportant in cases of nullities. He stated that if this Court finds that the orders of 4th January, 2023 are a nullity, then the said orders should be set aside as a matter of right since there would be no room to consider factors such as delay.
10.  Mr. Mugambi, learned Counsel for the Advocate submitted that the objective of the examination of the client’s directors cannot be achieved without the books of accounts and in any event, no explanation had been given for not being able to produce the books of accounts. He stated that the instant application is one for review and it ought to have been brought pursuant to the provisions of Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules as they are the applicable provisions. He contended that the choice of Order 12 Rule 7 of the Civil Procedure Rules, 2010 indicates an acknowledgment of failure to attend Court.
11.  He also contended that the instant application does not meet the threshold of an application for review. Firstly, because the application is by the client yet the contested orders are directed to the directors, yet the client has not alleged that there has been discovery of new and important matters and there is no express allegation that there is a mistake or error that is apparent on the face of the record. He indicated that the client herein suggests that the contested directions are contrary to the orders made by Mabeya J., that the examination of the client’s directors be held in abeyance pending the hearing and determination of the garnishee’s application. Mr. Mugambi submitted that the aforesaid directions by Mabeya J., were administrative in nature and for efficacy, and they cannot be unalterable especially where there may be a basis for concluding that the client merely seeks to frustrate the execution process.
12.  He stated that when the parties appeared before the Deputy Registrar on 4th January, 2023, there was appreciation that the Court had to give directions that would ensure that the matter was dealt with conclusively during the service week that begun on 16th January, 2023 and ended on 20th January, 2023. He contended that the directions given by the Deputy Registrar were not contrary to the directions given by the Judge, as the Deputy Registrar simply exercised her discretion by invoking the Court’s inherent power as provided for under Section 3A of the Civil Procedure Act and made directions that would ensure the matter was concluded during the service week, thus giving effect to the overriding objective of the Court provided for under Section 1A of the Civil Procedure Act.
13.  Mr. Mugambi relied on the Halsbury’s Law of England, 4th Edition Volume 37 paragraph 14 and the case of John Gakure & 148 others v Dawa Pharmaceutical Co. Ltd & 7 others [2010] eKLR where Waki JA quoted with approval the Court of Appeal’s decision in City Chemist (NBI) & another v Oriental Commercial Bank Limited Civil Application No. Nai 302/2008 (UR). The Advocate’s Counsel stated that the directions given by the Deputy Registrar on hearing of the applications herein were intended to reduce delay, costs and expenses and at the same time expedite the determination of this matter hence this was a proper exercise of inherent power to give effect to the overriding objective. He stated that the Court issued notices to parties on 30th December, 2022 through e-mail and out of abundance of caution, the Advocate’s Counsel forwarded the Court’s email to all the parties on 3rd January, 2023. He stated that the garnishee’s Advocate received the emails and attended Court but the Client’s Advocate did not.
14.  Counsel for the Advocate referred to the case of Dennis Nyabenge v National Oil Corporation of Kenya Ltd [2016] eKLR where the Court outlined the principles to be considered in determining whether due process was followed in listing a matter for determination in the Judicial service week. He submitted that the Court Registry sent notices through email to all parties and in as much as the Client’s Counsel contended that the email of 30th December, 2022 was sent to the wrong email address, they did not say that the said email address is not theirs. He stated that the Client’s Advocate acknowledged the email of 3rd January, 2023 but said that Counsel was away on leave between 3rd January, 2023 and 23rd January, 2023, which meant that the client’s Advocate was aware of the mention date thus the Deputy Registrar cannot be accused of failing to give the client an opportunity to be heard.
15.  Mr. Mugambi asserted that on 26th May, 2022 the Court ordered that the client’s directors be examined on oath as to its books of accounts and other documentary evidence showing the same and that the Deputy Registrar merely set a date for their examination and ordered them to furnish the books of account that they were required to produce pursuant to the order of 26th May, 2022. He contended that the Deputy Registrar’s orders are not prejudicial to the client’s directors as they will be heard during the examination. He stated that it is only fair and just for the Advocate to be furnished with the materials that the client’s directors will rely on before the examination.
16.  He expressed the view that setting aside the Deputy Registrar’s orders of 4th January, 2023 will not serve any useful purpose as the orders of 26th May, 2023 remain in place thus the books of accounts have to be produced. He stated that based on the foregoing, there were no sufficient reasons to set aside the directions issued by the Deputy Registrar. Counsel for the Advocate relied on the case of Patel v E.A Cargo Handling Service Limited [1974] EA 75 and submitted that the main concern of the Court should be to do justice between the parties in this case and there was no justification for the books of accounts not being produced.
17.  Mr. Mugambi contended that the instant application has been filed inordinately late since the Deputy Registrar issued her directions on 4th January, 2023 whereas the application herein was filed on 24th February, 2023, yet the client has not offered any explanation as to why the application herein was filed more than thirty (30) days after the directions by the Deputy Registrar were issued.


ANALYSIS AND DETERMINATION.
18.  I have considered the application filed herein, the grounds on the face of it and the affidavit filed in support thereof, the replying affidavit by the Advocate as well as the written submissions by Counsel for the parties. The issues that arise for determination are –
i) Whether the client was duly served with a mention notice for 4th January, 2023 before the Deputy Registrar;
ii) Whether the orders issued by the Deputy Registrar on 4th January, 2023 are a nullity by virtue of the fact that they were issued on a mention date; and
iii)  Whether the orders issued by the Deputy Registrar unlawfully reviewed the orders made by Mabeya J., on 14th July, 2022.
19.  In the affidavit filed by the client, it deposed that its Advocates on record was on 30th January, 2023 served with a draft order for approval in relation to proceedings conducted on 4th January, 2023. It averred that its Advocates on record later learnt that the date of 4th January, 2023 was communicated by the Advocate via email on 3rd January, 2023 but the said notice was not adequate since the client’s Advocate on record was away on leave between 3rd January, 2023 and 23rd January, 2023.
20.  The client stated that there was no application by the Advocate before the Deputy Registrar to vary the orders of Mabeya J., to hold the cross-examination of the client’s directors in abeyance pending the hearing and determination of the garnishee’s application and there was also no formal application for the substantive orders made by the Deputy Registrar. He stated that even if there was an application to that effect, it could not be granted on a date when the matter was coming up for mention.
21.  The Advocate in its replying affidavit deposed that on 30th December, 2022, they received an email from the Court Registry notifying them that the Court had screened this matter and identified it as fit to be disposed of during the service week that begun on 16th January, 2023 and ended on 20th January, 2023. That the said notice also mentioned that this matter would be mentioned for directions on 4th January, 2023 before Hon. Stephany Githogori (Deputy Registrar). He averred that the said notice was emailed to all parties whose matters had been screened and identified as fit to be handled during the service week.
22.  The Advocate further averred that upon perusal of the list of emails, he found that the client’s Advocates’ email address litigation@mmcasafo.com was on the list and as such, the client’s Advocates had adequate notice of the mention date of 4th January, 2023. He stated that on 3rd January, 2023, he forwarded the Court’s notice to the client’s and garnishee’s Advocates through their email addresses bkongere@mmcasafo.com, mmcmsa@mmcasafo.com and gikandiadvocate@yahoo.com.
23.  He deposed that the directions issued by the Deputy Registrar on 4th January, 2023 were to ensure that all pending issues in this matter were dealt with conclusively during the service week and that they are not prejudicial in any way. Counsel further deposed that the examination of a director under Order 22 Rule 35(b) requires books of accounts to be produced. That on 26th May, 2022, the Court ordered the client’s directors to be examined on oath as to the client’s books of account and other documentary evidence showing the same hence the client has had more than ten (10) months to produce the said books of accounts but had not done so.
24.  The Advocate asserted that the instant application is only meant to scuttle the examination of the client’s directors and the conclusion of this matter thus it is an abuse of the Court process.
25.  Before I delve into the issues for determination, I wish to state that on perusal of the application herein, it is my finding that it is not an application for review as submitted by the Counsel for the Advocate as this application seeks to set aside orders made by the Deputy Registrar in the absence of the Client’s Counsel. For this reason, the conditions precedent to the grant of an order for review are not applicable to the present application.
Whether the client was duly served with a mention notice for 4th January, 2023 before the Deputy Registrar.
26.  It is not disputed that on 30th December, 2022, the Court sent out notices notifying parties that their matters had been screened and identified as fit to be handled during the service week. The parties herein were also notified that this matter would be mentioned on 4th January, 2023 before the Deputy Registrar for directions. The notice that was purportedly sent to the client’s Advocate was sent to litigation@mmcasafo.com. The Client’s Counsel submitted that it was not given adequate notice since the email address where the Court sent the notice does not appear on its pleadings, as from its pleadings, all emails should be sent to mmcmsa@mmcasafo.com.
27.  The Client’s Counsel further submitted that the Court’s notice forwarded by the Advocate on 3rd January, 2023 does not cure the Court’s failure to notify it of the mention date of 4th January, 2023 since its Counsel on record was on leave as from 3rd January, 2023 to 23rd January, 2023. The Advocate on the other hand submitted that in as much as the client’s Counsel contends that the email of 30th December, 2022 was sent to the wrong email address, they did not say that the said email address was not theirs. Further, that the Client’s Advocate acknowledged the email of 3rd January, 2023 but said that Counsel was away on leave between 3rd January, 2023 and 23rd January, 2023, which means that the client’s Advocate was aware of the mention date.
28.  As correctly submitted by Counsel for the client, the email address that appears in all its pleadings is mmcmsa@mmcasafo.com, this therefore begs the question as to why the said notice was not sent to the said email address by the Court. It is not known where the Court got the email address litigation@mmcasafo.com where they sent the said notice. The Advocate acknowledged having forwarded the Court’s email to the client’s Advocate on 3rd January, 2023 vide email addresses bkongere@mmcasafo.com and mmcmsa@mmcasafo.com. This confirms the client’s contention that service to its Advocate ought to be effected through their known email address mmcmsa@mmcasafo.com which also appears on the face of all their pleadings.
29.  Based on the foregoing, in as much as the client does not expressly deny that the email address litigation@mmcasafo.com belongs to it, in the absence of an affidavit of service by the Court process server, there is a likelihood that the client’s Advocate did not receive the notices sent by Court on 30th December, 2022. It is not disputed that the Advocate forwarded the Court’s email to the client’s Advocate on 3rd January, 2023 but the client’s Counsel on record had proceeded on leave from 3rd January, 2023 to 23rd January, 2023. It cannot then be said that the email sent by the Advocate’s Counsel was adequate notice to the Client’s Counsel that this matter had been listed for mention for directions before the Deputy Registrar on 4th January, 2023.
30.   It is my finding that the said email was not sufficient notice since it was sent on the same day that the client’s Advocate had begun his leave. In any event, the client’s Advocate averred that he only learnt of the said email much later after he had been served on 30th January, 2023 with a draft order for approval in relation to proceedings conducted on 4th January, 2023.
31.  In light of the above, it is my finding that the Client and/or its Advocates on record were not duly notified that this matter had been screened and identified as being fit to be handled during the service week and that this matter was scheduled for mention on 4th January, 2023 before the Deputy Registrar for directions. For the said reason, the orders that were given on 4th January, 2023 went against the rules of natural justice since they were issued before the client was granted an opportunity to be heard as provided for under Article 50(1) of the Constitution of Kenya, 2010.
Whether the orders issued by the Deputy Registrar on 4th January, 2023 are a nullity by virtue of the fact that they were issued on a mention date.
32.  It is not disputed that this matter was screened and identified as being fit to be handled during the service week. It was then fixed for mention for directions before the Deputy Registrar on 4th January, 2023. This Court notes that no formal application was filed by the Advocate to warrant being granted the orders made by the Deputy Registrar on 4th January, 2023. On perusal of the Court record, I note that on 26th May, 2022, Mabeya J., granted the Advocate an order to examine on oath the client’s directors as to the client’s books of accounts and other documentary evidence. The learned Judge did not grant the Advocate an order directing the client to provide the Advocate with its books of accounts. Therefore, the Advocate cannot make an inference that by virtue of the Court directing that the client’s directors be examined on oath as to the client’s books of accounts and other documentary evidence showing the same, the Court also made an order that the client provides the Advocate with its books of accounts
33.  An application for production of books of accounts or documents is made pursuant to the provisions of Order 22 Rule 35 of the Civil Procedure Rules, 2010 which states as hereunder –
“Where a decree is for the payment of money, the decree - holder may apply to the court for an order that—
a) the judgment-debtor;
b) in the case of a corporation, any officer thereof; or
c) any other person,
be orally examined as to whether any or what debts are owing to the judgment-debtor, and whether the judgment-debtor has any and what property or means of satisfying the decree, and the court may make an order for the attendance and examination of such judgment-debtor or officer, or other person, and for the production of any books or documents.”
34.  In the case of Central Bank of Kenya v Uhuru Highway Development Ltd. & 3 Others Civil Appeal No. 75 of 1998, cited with authority by the Court in Central Organization of Trade Unions (K) v Cabinet Secretary, Ministry of Labour Social Security & Services & 2 other [2014] eKLR, the Court of Appeal held that when a matter is fixed for mention, the Judge has no business determining on that date the substantive issues in the matter unless the parties so agree, and of course, after having complied with the elementary procedure of hearing what submissions Counsel may wish to make on behalf of the parties.
35.  Similarly, in the case of Paul Odhiambo Ogunde v Maersk Kenya Limited [2016] eKLR the Court held that –
“It is settled in law that substantive orders are not to be granted on the date a matter comes up for mention ((see Rahab Wanjiru Evans v Esso Kenya Limited (Civil Appeal No. 13 of 1999) and Kenya Commercial Bank Limited v Naphtaly J.B. Hawala (Civil Application No. 240 of 1997)). In light of this jurisprudence, it seems to me that it is not open for the Court to make substantive orders on a mention date. This is mainly because parties do not have an opportunity to make substantive submissions on a mention date and orders thus made could well occasion an injustice.”
36.  From the foregoing, it is my finding that an order for production of books of accounts is a substantive order that can only be made after the Court has heard arguments and/or submissions by both parties in a hearing, and/or after parties have consented to being heard on a date set for mention of a matter. In view of the fact that the order in issue was made on a mention date and in the absence of the client and/or its Advocates on record who were not served with the mention notice in good time, I find that the said orders are against the rules of natural justice, thus a nullity.
Whether the orders issued by the Deputy Registrar unlawfully reviewed the orders made by Mabeya J., on 14th July, 2022.
37.  Both parties agree that on 14th July, 2022, Mabeya J., directed that the examination of the client’s directors on oath be held in abeyance pending the hearing and determination of the garnishee’s application. The Advocate contends that the said directions were only administrative in nature and for efficacy and they cannot be unalterable especially where there may be a basis for concluding that the client merely seeks to frustrate the execution process. On perusal of the proceedings of 14th July, 2022, I did not see the directions given by Mabeya J., to the effect that the examination of the client’s directors on oath be held in abeyance pending the hearing and determination of the garnishee’s application.
38.  On 4th January, 2023, in addition to the Deputy Registrar making an order for production of books of accounts by the client, she directed that all the pending applications be heard on 2nd March, 2023 before Mabeya J. The High Court is a Court of record and since the record does not contain directions by Mabeya J., to the effect that examination of the client’s directors on oath be held in abeyance pending the hearing and determination of the garnishee’s application, it cannot be said that the net effect of the Deputy Registrar’s directions issued on 4th January, 2023 was to review the directions given by Mabeya J., on 14th July, 2022.
39.  In the premise, this Court finds that the application dated 24th February, 2023 is merited. It is allowed as prayed. Costs are awarded to the applicant.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 7th day of July, 2023. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE   
     In the presence of:
     Ms Cheruiyot h/b for Mr. Kongere for the client/applicant
     Ms Mwangi for the Advocate
     Ms B. Wokabi – Court Assistant.