Synergy Industrial Credit Limited v Oxyplus International Limited & 2 others

Purchase Act because it was for an amount over Kshs. 4,000,000 and made by a hirer who is a body corporate. That the certificate of registration endorsed on the agreement is therefore void. That in the result, the agreement is illegal and judgment entered on admission is invalid. Response 5. The plaintiff/ respondent filed a replying affidavit sworn by its legal officer, Jacob M. Meeme on 4.12.2025. It highlighted that the hire purchase agreement was admitted as part of the plaintiff’s evidence by consent of the parties. It contended that the applicant cannot purport to challenge it later. It argued that the application is frivolous, vexatious, an afterthought and a gross abuse if the court process. 6. The respondent disputed the notion that the entire hire purchase agreement is voided by an alleged invalid certificate of registration. It asserted that the claim that the certificate is invalid is based on hearsay and is inadmissible. It faulted the applicants for not challenging the judgment on admission through an appeal if dissatisfied. 7. The respondent asserted that this was its suit and that the applicants cannot join any party and that they lack locus standi. It added that the proposed interested party will not serve any purpose as they have no interest in the matter. 8. The respondent contended that the affidavit in support of the application is for striking out because it has been sworn by counsel contrary to the principle that counsel should not descend into the arena of the dispute. Submissions 9. The applicants filed written submissions dated 19.1.2026 while the respondent filed written submissions dated 16.3.2026 which I have fully considered. I will refer to them as necessary in the analysis. Analysis and Determination 10. I have considered the application, the parties’ respective affidavits, submissions and authorities cited. 11. The issues are whether the applicants’ case should be re-opened and whether the proposed interested party should be joined in the proceedings. 12. The court’s power to re-open the case and to permit a witness to be recalled is discretionary. It must be exercised upon certain legal principles and according to the circumstances of each case and the paramount need by court to do real and substantive justice to the parties in a suit. Patriotic Guards Ltd v James Kipchirchir Sambu [2018] KECA 799 (KLR) 13. In this case, the applicants seek reopening of the case to interrogate the authenticity of the certificate endorsed on the Hire Purchase Agreement. 14. In Samuel Kiti Lewa v Housing Finance Co. of Kenya Ltd & another [2015] eKLR, cited by the respondent, the court observed that re-opening of a case should not be allowed where it is intended to fill gaps in evidence. 15. In Smith v New South Wales [1992] HCA 36; (1992) 176 CLR 256 it was held that: “ If an application is made to reopen on the basis that new or additional evidence is available, it will be relevant, at that stage, to enquire why the evidence was not called at the hearing. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7135/eng@2026-04-30 2

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If there was a deliberate decision not recorded, ordinarily that will tell decisively against the application. But assuming that that hurdle is passed, different considerations may apply depending upon whether the case is simply one in which the hearing is complete, or one which reasons for the judgment have been delivered. In the latter situations the appeal rules relating to fresh evidence may provide a useful guide as to the manner in which the discretion to reopen should be exercised.” 16. The guiding principles for additional evidence were discussed by the Supreme Court in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others, SC Petition No. 7 & 9 of 2018 [2018] eKLR. They include that the additional evidence (a) must be directly relevant to the matter before the court and be in the interest of justice; (b) it must be such that, if given, it would influence or impact upon the result of the verdict, although it need not be decisive; (c) it is shown that it could not have been obtained with reasonable diligence for use at the trial, was not within the knowledge of, or could not have been produced at the time of the suit. 17. The court ought to balance between the significance of the additional evidence and the need for swift conduct of litigation as well as any other prejudice that might arise from the additional evidence. 18. The respondent complained that the defendants have been delaying the conclusion of this matter. The record reflects as follows: - 19. In the ruling of 30.8.2021, the court observed that: QUOTE{startQuote “} 28. ...At the heart of this application is a letter dated 26th February 2018 allegedly authored by a director of the 1st defendant. The letter not only admits the debt but also proposes mode of repayment. The letter is to be viewed not in isolation but also together with the subsequent correspondence from the Plaintiff accepting the repayment proposal. Whereas the defendants are disputing that letter, they have not contested the subsequent communication from the plaintiffs accepting their proposal. The admission is not ambiguous. In line with Order 13 Rule 2, the Plaintiff is entitled to entry of judgment for the amount admitted.” 20. Thereafter, the defendants applied to be allowed to pay the decretal amount in instalments. The application was dismissed vide a ruling dated 26.8.2022. This was because the applicants showed no good will towards paying off the decretal amount by paying any amount and the proposed instalments were too minimal. 21. The defendants filed another application dated 1.11.2022 seeking to be allowed to pay the decretal sum through a different payment plan. This application was struck out vide ruling of 21.12.2022 as it was found to be res judicata. 22. The trial of the case commenced on 24.2.2025. 23. On 6.5.2025, the trial was adjourned midway at the instance of the defendants because of bereavement. The court noted that there had been numerous adjournments sought earlier by the defendants. The court however, granted an adjournment in good faith due to the bereavement. 24. The defendants’ case was thereafter heard and closed on 30.6.2025. 25. The axis on which this application turns is on the relevance of the additional evidence. 26. The application herein is hinged on the authenticity of the certificate on the Hire Purchase Agreement. They contended that the agreement is excluded from protection under the Hire Purchase Act because https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7135/eng@2026-04-30 3

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it was for an amount over Kshs. 4,000,000 and made by a hirer who is a body corporate. That the certificate of registration endorsed on the agreement is therefore void. That in the result, the agreement is illegal and judgment entered on admission is invalid. 27. The applicants relied on Diamond Trust Bank Kenya Limited (Formerly Diamond Trust of Kenya Limited) v Jaswinder Singh Enterprises (Civil Appeal No. 285 of 1998) where it was held that Section 3 (1) of the Hire Purchase Act excluded all agreements where the hirer is a body corporate from protection of the Act. 28. The applicants argued that there was no way the Registrar could have registered an agreement knowing that the hirer is a company and the amount is over Kshs. 34,000,000/- was above the Kshs. 4,000,000/limit. 29. The applicants relied on D. Njogu & Co. Advocates v National Bank of Kenya Ltd [2016] KECA 85 and National Bank of Kenya Ltd v Wilson Ndolo Ayah Civil Appeal No. 119 of 2002 to assert that a document whose statutory registration was impossible cannot remain on evidentiary record. 30. On the other hand, the respondent argued that failure to register the agreement would not render the agreement void as it retains its validity as a contract inter se and was enforceable as such. 31. The respondent relied on the cases of Imperial Bank of Kenya v Kariuki Construction Company Limited & 2 others [2015] KEHC 8395 (KLR), Taawawa Supermarket Limited v Fina Bank Limited, Civil Appeal No. 118 of 2002 and John Mwangi Muchira v Hyper Cars Limited HCCC 126 of 2008. 32. I have considered both sides arguments and authorities. Whereas arguments have been made that, the hire purchase agreement in this matter is for an amount of over Kshs. 34,000,000/-, thus, it is not granted the protection under section 3 of the Hire Purchase Act, does not mean that the agreement is void and unenforceable as claimed by the defendants. It can be enforced inter se under contract law. 33. Leading to the conclusion that the additional evidence is not relevant. 34. Therefore, there is no basis for reopening the defendant’s case. 35. In the upshot, the application dated 16.10.2025 is dismissed with costs to the plaintiff/ respondent. DATED, SIGNED AND DELIVERED AT NAIROBI THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 30TH DAY OF APRIL, 2026 ------------F. GIKONYO M JUDGE In the presence of: Ms. Khadija for Plaintiff Wanjihia for Mogaka for defendants CA- Ivan/Aggrey https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7135/eng@2026-04-30 4

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