Chege & others v Kihahu [2023] KECPT 797 (KLR)

Chege & others v Kihahu (Tribunal Case 238 of 2020) [2023] KECPT 797 (KLR) (Civ) (24 August 2023) (Ruling)

Neutral citation: [2023] KECPT 797 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 238 of 2020

BM Kimemia, Chair, J. Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members

August 24, 2023

Between

Arthur Chege & others

Claimant

and

Gerald Muchoki Kihahu

Respondent

Ruling

1. The Application is vide a Notice of Motion brought under article 159 of theConstitutionof Kenya, 2010, section 80 of the Civil Procedure Act, order 45 rule 1 and order 40 rule 1 of the Civil Procedure Rules, 2010. It is dated 02/05/2023 and filed on 05/05/2023. The Application sought the following orders:i.Spentii.That this court reviews the Ruling and Orders it delivered on 13/04/2023 directing the Respondent’s employer, Craft Silicon Limited to withhold and remit to the Advocates of the Claimant/Decree Holders the judgement debtor’s whole salary on a monthly basis until the decretal sum to be settled.iii.That this Honorable Court substitutes Order no. 3 by ordering that the Respondent’s employer, Craft Silicon Limited withholds and remits 1/3 of the Respondent’s salary to the Advocates of the Claimant on a monthly basis until the decretal sum is settled.

2. The Applicant avers that there is an error on the face of the record on the orders dated 13/04/2023. Due to the fact that they go against section 44 of the Civil Procedure Act read together with order 22 rule 42 of the Civil Procedure Rules 2010. In that, the law only allows 1/3 of a Judgment Debtor’s salary to be attached yet the orders given infer that the whole salary be attached and remitted on a monthly basis until satisfaction of the decretal sum. The Applicant further avers that the Judgement Debtor has been paying Kshs 70,000/- since March 2022 to the Decree Holder’s Advocate making a total of Kshs 910,000/-.

3. The Respondent’s filed a Replying Affidavit dated 13/06/2023 and filed on 15/06/2023. The Respondent claims that the present Application is only a leeway to delay and prolong enjoyment of the fruits of their judgments. Further the claim that the Judgement Debtor’s proposal to deduct a third (1/3) of his salary is only meant to prolong enjoyment of the fruits of the judgements.

Analysis and Determination. 4. Both parties were directed to file their written submissions, directions which both parties compiled with.

5. After perusing through the written submissions and considering all the pleadings, it is the Tribunal view that the issue for determination is as follows:

Whether the grounds for review have been satisfied? 6. The review of decrees or orders is provided for under section 80 of the Civil Procedure Act and order 45 rule 1 of theCivil Procedure Rules2010. Order 45 Rule 1(b) gives grounds for an application of review to be successful. It is noteworthy that courts have discretion to allow review however on the three limps under Order 45 Rule 1 or for any sufficient reason. This was the position as held in Pancres T. Swai v Kenya Breweries limited [2014] eKLR.

7. In Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] eKLR High Court of Kenya Nairobi Judicial Review Division Misc Application No. 317 of 2018, Justice Mativo culled out the principles for review as follows:i.A court can review its decision on either of the grounds enumerated in Order 45 Rule 1 and not otherwise.ii.The expression ‘any other sufficient reason’ appearing in Order 45 Rule 1 has to be interpreted in the light of other specified grounds.iii.An error is not self-evident and which can be discovered by a long process of reasoning cannot be treated as an error apparent on the face of record justifying exercise of power under Section 80. iv.An erroneous order/decision cannot be corrected in the guise of exercise of power of review.v.A decision /order cannot be reviewed under Section 80 on the basis of subsequent decision/ judgment of a coordinated or larger Bench of the Tribunal or of a superior court.vi.While considering an Application for review, the court must confine its adjudication with reference to material, which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent.vii.Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such matter of evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court/ tribunal earlier.viii.A mistake or an error apparent on the face of the record means a mistake or an error, which is prima-facie visible and does not require any detail examination.ix.Section 80 of the Civil Procedure Code provides for a substantive power of review by a civil court and consequently by the appellate courts. The words occurring in section 80 mean subject to such conditions and limitations as may be prescribed thereof and for the said purpose, procedural conditions contained in order 45 rule 1 must be taken into consideration. Section 80 of theCivil Procedure Actdoes not prescribe any limitation on the power of the court, but such limitations have been provided for in order 45 rule 1. x.The power of a civil court to review its judgement/ decision is traceable in section 80 Civil Procedure Act. The grounds on which review can be sought are enumerated order 45 rule 1.

8. One of the grounds under order 45 rule 1 is that a review can be made on account of some mistake or error apparent on the face of the record. The Tribunal is of the fact that the Decree Holder has to enjoy the fruits of their judgement but not to the detriment and complete economic collapse of Judgement Debtor and his family.

9. It is the Tribunal’s opinion that indeed there was a mistake apparent in committing the whole salary to the payment of the decretal sum.

Determination. 10. From the foregoing the Tribunal is persuaded that there was an error apparent on the face of the record.

Orders. 11. Application dated 02/05/2023 is found to have merit as such orders issued on 24/4/2023 is reviewed to the extent of 1/3 of Respondent’s salary.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 24TH DAY OF AUGUST, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 24. 8.2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 24. 8.2023HON. BEATRICE SAWE MEMBER SIGNED 24. 8.2023HON. FRIDAH LOTUIYA MEMBER SIGNED 24. 8.2023HON. PHILIP GICHUKI MEMBER SIGNED 24. 8.2023HON. MICHAEL CHESIKAW MEMBER SIGNED 24. 8.2023HON. PAUL AOL MEMBER SIGNED 24. 8.2023TRIBUNAL CLERK JEMIMAH/JONAHAnyona advocate for the RespondentChimei advocate for the ClaimantRuling as read out.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 24. 8.2023