Surgipharm Ltd v Aksher Pharmacy Ltd & another [2004] eKLR

Key Facts

Transaction Type

Issues

• The court addressed whether cross-examination of a deponent is permissible under Order XVIII rule 2(1) despite the proviso to rule 1. The analysis concluded that the rules are complementary, allowing cross-examination if a party doubts the deponent's bona fides, as demonstrated by the availability of Mr. Shah for cross-examination.
• The court analyzed the Defendants' claim of prejudice from the Plaintiff's Further Affidavit, which introduced a newly stamped guarantee. The court rejected the argument, stating that the stamping did not cause legal injury or procedural unfairness, and referenced analogous cases to support its ruling.
• The court evaluated the grounds for striking out an affidavit under Rule 6 of Order XVII, focusing on whether the Further Affidavit was scandalous, irrelevant, or oppressive. Citing legal definitions and precedents, the court determined the affidavit was neither scandalous, irrelevant, nor oppressive, thus upholding its admissibility.
• The court examined whether the wording of Order XXXV rule 1(2) allows for multiple affidavits. The Defendant argued the rule permits only a single affidavit, but the court interpreted the statute using the Interpretation and General Provisions Act (Cap 2) to conclude that no contrary intention exists, thereby allowing the Plaintiff's Further Affidavit.
• The court considered whether a document liable to stamp duty may be stamped out of time under Section 19(3) of the Stamp Duty Act (Cap 483). The issue arose from the Plaintiff's submission that the guarantee document, though unstamped at the time of filing, could be admitted in evidence after being stamped out of time as permitted by the statute. The court analyzed the relevant provisions and referenced prior decisions to determine admissibility.
• The court assessed its authority to grant leave under Order L rule 16(2) for filing a Further Affidavit. Referencing statutory provisions and prior cases (e.g., Morjaria vs Kenya Batteries Ltd, HCCC No. 1585 of 2000), the court affirmed its discretion to allow such filings even without prior leave, provided they align with procedural fairness.

Holdings

• The court overruled the preliminary objections by the Defendants' counsel, concluding that the Plaintiff's actions in stamping the guarantee did not prejudice the Defendants. The judge highlighted that the Court's duty to impound unstamped documents and allow reasonable time for compliance aligns with established practices and precedents.
• The court ruled that Order XXXV rule 1(2) of the Civil Procedure Rules permits multiple affidavits unless a contrary intention is explicitly stated. The judge rejected the Defendants' counsel's argument that only one affidavit is allowed, citing the Interpretation and General Provisions Act (Cap 2) which clarifies that plural and singular terms are interchangeable in written laws absent specific exceptions.
• The court found the Further Affidavit filed by the Plaintiff not to be scandalous, irrelevant, or oppressive. The judge reasoned that the guarantee's stamping was relevant to the matter in issue and did not cause prejudice, referencing legal definitions and precedents to support this conclusion.
• The court granted leave to file the Further Affidavit under Order L rule 16(2), citing its authority to do so and referencing prior cases like Morjaria v Kenya Batteries Ltd and Bank of Baroda (Kenya) Ltd v Timwood Products Ltd. The judge emphasized that procedural rules serve justice, not hinder it, and that fairness is paramount.
• The court held that a document liable to stamp duty may be stamped out of time and received in evidence under Section 19(3) of the Stamp Duty Act (Cap 480), provided the person liable for stamping applies to a collector for leave under Section 20 or obtains a certificate under Section 21. The judge emphasized that the Court's statutory duty to impound and allow reasonable time for stamping does not prejudice the Defendants, even if irritating.
• The court determined that cross-examination of a deponent under Order XVIII rule 2(1) is permissible even after filing an affidavit. The judge clarified that the proviso to Order XVIII rule 1 and rule 2(1) are complementary, allowing the Court to order attendance for cross-examination if a party desires it, which was available in this case for Mr. Shah.

Remedies

• The court overrules the preliminary objections raised by the defendants regarding the admissibility of the stamped guarantee document and the procedural validity of filing the Further Affidavit without prior leave. The ruling emphasizes that the stamping of the guarantee out of time does not prejudice the defendants and that procedural rules exist to facilitate justice, not hinder it.
• The court grants leave to the plaintiff to file a Further Affidavit in support of the application for summary judgment, which includes the stamped guarantee document. The preliminary objections by the defendant's counsel regarding the admissibility of the stamped guarantee document and the filing of the Further Affidavit are overruled.

Contract Value

Legal Principles

Precedent Name

• Iron & Steel Wares Limited -vs- C.W. Martyr & Company
• Morjaria -vs- Kenya Batteries Ltd. & Others
• Giro Commercial Bank Ltd. -vs- Nakumatt Holdings Ltd.
• Bank of Baroda (Kenya) Ltd. -vs- Timwood Products Ltd.
• Stephen Kiprop Chesire -vs- Hako Industries

Key Disputed Contract Clauses

Cited Statute

• Interpretation and General Provisions Act (Cap 2 Laws of Kenya)
• Stamp Duty Act, Cap 480, Laws of Kenya
• Civil Procedure Rules
• Companies Act Cap 486, Laws of Kenya
• Evidence Act, Cap. 80, Laws of Kenya

Judge Name

Passage Text

• In Milimani Commercial Courts HCCC NO. 1585 of 2000, Giro Commercial Bank Ltd. -vs- Nakumatt Holdings Ltd. & 3 Others my brother Hon. Mr. Justice Azangalala granted leave to the plaintiff to file a Further Affidavit in support of an application for summary Judgement, very much the same as in this case.
• Upon the production in any Court other than a criminal Court, arbitrator, referee, company or other corporation, or to any officer or servant of any public body of any instrument which is chargeable with stamp duty and which is not duly stamped, the Court, arbitrator, referee, company or any other corporation, officer or servant shall take notice of the omission or insufficiency of the stamps on the instrument and thereupon take action in accordance with the following provisions - (a) If the period of time or before which the instrument should have been stamped has expired and the instrument is one in respect of which a person is specified in the Schedule to this Act as being liable for the stamping thereof, the instrument shall be impounded and, unless the instrument has been produced to a collector, shall be forwarded to a collector. (b) In any such case, before the exclusion or rejection of the instrument, the person tendering it shall, if he desires be given a reasonable opportunity of applying to a collector for leave under Section 20 or of obtaining a certificate under Section 21. (c) In any other cases, unless otherwise expressly provided in this Act, the instrument shall saving all just exceptions on other grounds, be received in evidence upon payment to the Court, arbitrator or referee of the amount of the unpaid duty and of the penalty specified in subsection (5), and the duty and penalty, if any, shall forthwith be remitted to a collector with the instrument to be stamped after the instrument has been admitted in evidence.
• The answer to the 6th issue (whether the Court has authority to grant leave under Order L rule 16 (2) must therefore be in the affirmative. The said rule provides as follows - (2) Any applicant upon whom a replying affidavit has been served under subrule (1) may with leave of the Court filed a supplementary affidavit.

Damages / Relief Type