IGNATIUS CHEGE MWANGI VS ASATI ANYONA & CO. ADVOCATES

RULING

1. The Respondent (hereinafter referred to as “the Applicant”) filed a Chamber Summons application dated 15.03.2024 (hereinafter referred to as “the present Application”) against the Applicant (hereinafter referred to as “the Respondent”) seeking for the following Orders; -
2. THAT the Honourable Court be pleased to struck out the Notice of Motion application dated 31.01.2024 for want of service.
3. THAT upon grant of the Order 1 hereinabove execution be ordered to proceed.
4. Costs of this Application.
5. The grounds in support of the above prayers is premised on following grounds; -
6. The Respondent herein failed to serve the said Notice of Motion application dated 31.01.2024 which was purported to be a Reference against the Applicant.
7. The said Notice of Motion Application dated 31.01.2024 was served 30 days after it was filed and therefore had abated.
8. There was no Notice of Objection that was ever served.
9. The Respondent’s actions of not serving the Notice of Motion Application dated 31.01.2024 was to hinder the Applicant to file any Counter-Reference.
10. Lastly, the Applicant was of the view that the Respondent was guilty of non-disclosure of material facts and therefore the Notice of Motion dated 31.01.2024 and filed on the 09.02.2024 was incurably defective.
11. The present Application was indeed served on the Respondent who opposed it by filing a Replying Affidavit dated 09.04.2024 through his Advocate on Record Mr. SILAS N. SAMOITA and adduced the following grounds; -
12. The Respondent pleaded that a Reference dated 31.01.2024 was filed on 02.02.2024.
13. However, at the time of filing the Reference dated 31.01.2024 the Court’s Efiling platform was not operating and therefore the said Reference could not be registered in the Efiling platform.
14. Due to this challenge, the Respondent’s Counsel made various efforts to ensure that the Reference was duly registered and/or uploaded in the efiling platform including writing a letter dated 14.03.2024.
15. Thereafter, the Respondent’s Counsel sought for a mention date before the Deputy Registrar, ELC to take directions on the hearing and determination of the Reference dated 31.01.24.
16. In other words, the Respondent pleaded that the failure to serve the said Reference within the prescribed time by the Court was due to the challenges occasioned by the Efiling platform.
17. In essence, the Respondent sought for this Honourable Court to dismiss the present Application with costs.
18. The present Application was further opposed by the Respondent in person through his Replying Affidavit sworn on the 06.05.2024 wherein he reiterated the grounds adduced by his Advocate through the Replying Affidavit dated 09.04.2024.
19. The Court directed that the present Application be canvassed by way of written submissions.
20. The Applicants in the present Application filed their submissions dated 30.04.2024 in support the prayers sought therein while the Respondent filed his submissions on 09.05.2024.
21. The Court has carefully perused the present Application, the two Replying Affidavits by the Respondent’s Counsel as well as the Respondent himself, the submissions thereof and the issue for determination is rather a straight forward one.
22. The only issue for determination is whether or not the non-service of the Respondent’s Reference on the Applicant was fatal and warrants the striking out of the entire Reference.
23. It is not in dispute and the proceedings so indicate that the Respondent was granted leave of 14 days from the 22.01.2024 to file and serve the Reference against the Ruling of the Taxing Master dated 24.08.2023.
24. The Applicants admit that the Respondent indeed filed his Reference on the 31.01.2024 but after that failed to serve the same on the Respondent within the provided time allowed by the Court.
25. The Applicants further submitted that the non-service of the Reference dated 31.01.2024 and filed on the 09.02.2024 prejudiced their case as the time of filing a Counter-Reference has since lapsed.
26. Consequently therefore, the entire Reference should be struck out with costs.
27. The Court confirms that on the 22.01.2024, the Respondent herein was granted 14 days to prepare, file and serve their Reference against the Ruling of the Taxing Officer dated 24.08.2023.
28. The period of 14 days granted by the Court on the 22.01.2024 was to lapse on the 06.03.2024.
29. The Respondent’s Reference contained in the proceedings of this file bears a receiving stamp with the date of 09.02.2024 although it is dated 31.01.2024.
30. According to the Respondent, his submitted that the Reference was duly filed before the 06.02.2024 but there were challenges with the Court’s Efiling platform which delayed the registration and receipt of the said Reference until 09.02.2024.
31. Indeed, it is true that at times the Judicial Efiling platform may face challenges.
32. However, the Efiling system is one that records the date and time when documents are uploaded and/or paid for be the parties who are mapped to the file.
33. Even if the Judicial Efiling platform was for one reason or another not functioning, the Respondent had a duty to bring this challenge to the attention of the Deputy Registrar ELC and/or the Registry Staff to be assisted to file the said document within the prescribed time.
34. The Court Fees Payment Receipt attached to the Reference dated 31.01.2024 and Stamped 09.02.2024 shows that the filing fees was paid on the 09.02.2024 at 11.59.35 am.
35. The date of the Court Fees Payment Receipt indicated as 09.02.2024 and the one affixed on the Reference itself confirm that indeed the Reference dated 31.01.2024 was filed on the 09.02.2024.
36. To further collaborate the above finding of the Court, the Respondent’s Counsel in his Replying Affidavit annexed a letter dated 14.03.2024 trying to explain the fact that the Efiling Platform is the reason the Reference dated 31.01.2024 was received on the 09.02.2024.
37. The letter dated 14.03.2024 to the Deputy Registrar by the Respondent’s Counsel reads as follows in part;-

“We filed the Reference herein on the 09.02.2024. Since the filing therefore the matter is dormant”

1. On the Respondent’s own admission, the Reference dated 31.01.2024 was filed on the 09.02.2024 as confirmed by the Court Fees Payment Receipt and the Receiving Stamp of the said Reference.
2. Consequently therefore, it is clear in the mind of this Court that the Respondent herein failed to file and serve the Reference dated 31.01.2024 within the period allowed by the Court on the 22.01.2024 and the same should be forthwith struck out.
3. In conclusion, the present Application is allowed and the Notice of Motion dated 31.01.2024 is struck out for being filed and served out of time as provided by the Orders of this Court issued on the 22.01.2024.
4. Similarly, the Applicants will be entitled to the costs of the present Application.
5. In the meantime, the Stay of Execution Orders issued against the Ruling of the Taxing Officer dated 24.08.2023 are hereby vacated and/or set-side forthwith.
6. The Deposit of KShs 250,000/- deposited in Court by the Respondent as security of costs will also be refunded to the depositor as soon as is practical.

DATED, SIGNED & DELIVERED Virtually in KILGORIS ELC Court on 18.07.2024.

IN THE PRESENCE OF:

COURT ASSISTANT: MR NGENO

ADVOCATE FOR THE APPLICANT/RESPONDENT: MR. SAMOITA

ADVOCATE FOR THE RESPONDENT/APPLICANT: MR. ANYONA