Mohamed Omar v Mohamed Abubakar Ali [2019] KEHC 1933 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

CIVIL APPEAL NO 12 OF 2017

MOHAMED OMAR ..............................................................................APPELLANT

VERSUS

MOHAMED ABUBAKAR ALI ..........................................................RESPONDENT

(Being an appeal from the ruling and order of Principal Magistrate Hon.  H. Nyakweba delivered on the 21st day of December, 2016 in CMCC (Msa) No. 2013 of 2013, between Mohamed Abubakar Ali vrs Mohamed Omar).

RULING

1. This is an appeal against the ruling delivered on 21st December, 2016 by Hon. NYAKWEBA, Principal Magistrate (as he then was in Mombasa CMCC NO. 2031 of 2013 allowing the Respondent’s  Application dated 22nd January, 2015.

2.  The Respondents in the said application had sought for:

(a) spent;

(b) that the judgment  delivered by the court on 23rd October 2015 be reviewed so that  the amount decreed by the court  carries interest at   the prevailing court rates form 17th        August, 2009 up to the date the decree will be  satisfied.

(c) that the  costs of this   application proved for

3.  The judgment sought to be  reviewed was delivered  in a suit instituted by the Respondent against the Appellant for a refund  of his money   paid to the appellant in respect of purchase of land, which the   Respondent felt was taking too long  to  materialize vide a plaint dated  7th September,  2012. In the plaint, the Respondent prayed or a refund  for Ksh 1,200,000/= together with interest at the rate of 12% from 17. 8.2019 from the appellant. The appellant filed a defence ide a statement of defence dated 22. 10. 2017.

4.  The suit was heard by Hon. KITAGWA (RM) who delivered her  judgment on 23. 10. 2015 in which the appellant was ordered to refund the Respondents  his said sum of Ksh 1,200. 000/= together  with costs  of the suit but  was not awarded interest. The Appellant paid the said sum of money and requested for the complation of costs through the  Appellant’s counsel vide a letter dated 22. 1.2016.

5.  This is what prompted the Respondent to file an application for review vide a notice of motion dated 22. 1.2016. A replying affidavit was filed by the appellant on 21. 3.2015 and application eventually heard interparties by Hon NYAKWEBA (PM) who deliver a ruling on  21. 12. 2016, in which he allowed the prayer for review of judgment  delivered on 23. 10. 2015. He entered judgment for the plaintiff against   the defendant  in the sum of Ksh 1,200,000/= together with interest at   court rates from the date of the suit being 20. 9.2012 until payment in  full. He also ordered the plaintiff to have costs of the suit.

6.  This was arrived at on the ground that according to the agreement  dated 17th August, 2009, the defendant was to make all necessary arrangement to subdivide and transfer the property to the plaintiff’s  name but he defaulted to do so within reasonable time, and had not  even done so on 23rd  Otober,2015, when judgment was delivered. Hon Nyakweba found this default serious, hence sufficient reason to cause the judgment delivered reviewed.

7.  It is against these findings and decision that the appellant has filed the instant appeal where he has set out four (4) grounds in his Memorandum of Appeal dated and filed on 19th January 2017. That;

(a) The learned principal magistrate erred in law and fact in failing to  observe and appreciate that the only issue which  was before the trial magistrate, Hon Kitagwa SRM, for consideration, was whether the Respondent was entitled to costs and interest, since  the  Appellant was   not averse to   the issue of a refund of the Ksh 1,200,000/= which the  Respondent  claimed in the suit, and of which the said trial magistrate made a decision on, and  gave reasons for her    decision.

(b) By holding that “ in my view where time  is not the essence   of contract, parties thereto  must perform their part within a reasonable time. According to the agreement of 12. 8.2009,    which is the basis of the main suit herein, the defendant  was to make all the necessary           arrangements to subdivide    and transfer the property to the plaintiff’s name.  He   defaulted to do so within reasonable time and had not done so at the time of judgment on 23. 10. 2015. This was a serious default  on his part” the learned principal magistrate erred in law and fact in reconsidering issues which had been considered by the trial magistrate, Honourable Kitagwa   SRM, when passing her judgment.

(c) The learned principal magistrate erred  in law and fact in  overruling the decision of the trial magistrate, Honourable  Kitagwa SRM, thereby sitting as an appellate court on a  matter arising from a court of concurrent  jurisdiction .

(d) The learned principal  magistrate erred in law and fact in considering extraneous issues which were never raised by  the  Respondent, either in his application for review dated 22. 1.2016 or  in his  written submissions, and were never  canvassed before him by any   party.

In his appeal, the appellant prays that the appeal be allowed, the  ruling of the subordinate court be varied accordingly and notice of  motion dated 22nd January, 2018 be dismissed.

8. The counsel for the parties agreed to dispose of the appeal by way of written submissions and both parties filed their written submission  on 24th January 2018. The same were highlighted on 12th February 2019

APPELLANT’S SUBMISSIONS.

9. The appellant, though, Mr. Odongo B. O counsel opted to argue the four grounds in the  memorandum of appeal separately. With regard   to the first ground the appellant counsel submitted that the only issues  for determination is whether  interest was payable  as was  pleaded in    the plaint and who was entitled to the  costs of suit since the appellant  admitted he was very much willing to refund the purchase price. He   submitted that the learned magistrate in her judgment  arrived at a    finding that  time was not of essence and the  Respondent was not   entitled  to interest sought and  expressly declined to grant the  same,  so that if any party felt aggrieved by this decision , they were free to   seek recourse in an  appeal and not a review.

10. The appellant counsel went on to submit that Hon Nyakweba  was wrong in  treating the reasoning by Hon Kitagwa  as an error on the  face of the record, considered her reasoning  more superior and dismissed  and or set aside the judgment, which he  replaced with his   own, an act that amounts to having given himself  appellate  powers over a matter that  arose in a court of consistent  jurisdiction.

11.  In conclusion, the learned counsel for the appellant submitted that the application for review had nothing new and important, mistaken or  with error  apparent on the face of the record, hence did not meet the  known requirements for a reviewed  application to succeed.

RESPONDENT’S SUBMISSIONS.

12.  The Respondent, through their counsel, Hon WILLIAM ONDIEKI  submitted  that Hon. KITAGWA refused to award, interest  from 17th August,2009 because, according to her, the agreement did not prescribe  timeless  within which the  transaction was to be completed.   He stated that the decision was in disregard to the provision of Section 60 of the Evidence Act where the courts are required to take judicial notice of matters  of common notoriety. He also stated that the court  failed to consider the doctrine of unjust enrichment.

13.  Counsel for the Respondent  also submitted that it was none efficacious  to apply for  review and  more  so considering  the casual manner in which Hon. KITAGWA dealt with the issue of interest. He cited the  court of appeal decision in the case of WANGECHI KIMITA and  ANOTHER VRS MUTAHI WAKABIRU (1977) e KLR, where the court appreciated the fact that “any other sufficient reason” in order to  open the door for review was quite wide.

14.  In conclusion, counsel for the Respondent submitted that costs and   interest, in all  fairness, should have followed the event but since HON. KITAGWA failed to appreciate this  principle, it was unjust and proper to  invite the same court to review its judgment under “any other  sufficient cause”. He placed reliance on the case of MISTRY AMAR SINGH VRS SERWANO WOFUNIRA KULUBYA UCA No. 74  of 1960 which dealt with the consequences of illegality in the  following words.

“ Ex Turpi causa Non Oritio Actio. This old and well known  legal maxim is founded in good sense and expresses clear   and well organized legal principle which is not confined to indictable offences. No court ought to enforce an illegal  contract, or allow itself to be made an instrument  of  enforcing obligations alleged to arise out of a contract or transaction which  is illegal, if the illegality is brought to the  attention of the court and if the  person invoking the aid of  the court is himself implicated in the illegality. It matters not whether the plaintiff has pleaded the illegality or whether he has not. If the evidence adduced by the plaintiff proves the   illegality the court ought   not to assist him”.

15.   In determining this appeal, I have considered the grounds raised in the  memorandum  of appeal viz a viz the application by notice of motion dated replying affidavit  dated  21st March,2016 submission by both the  counsel, cited authorities and the law.  I find that the only issue for         determination is whether, in over ruling the decision of HON.  KITAGWA, HON. NYAKWEBA sat as an appellant court on a matter  arising from a court of concurrent jurisdiction ANALYSISAND          DETERMINATION

16.  As regards an application for review and or setting aside of a judgment or decree, the  applicable  law is found under Section 80 of   the Civil Procedure Act and Order 45 Rule (1) of the Civil Procedure   Rules. Section 80 of the Civil   Procedure Act provides as follows:

“Any person who considers himself aggrieved

(a) by a decree or  order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or

“(b) by a decree or order from which no appeal is allowed by  this Act, may apply for a review  of judgment  to the court which passed the decree or made the order, and the court  may make such order thereon as it thinks fit.”

17. Order 45 Rule 1 of the Civil Procedure Rules elaborates on the ground  upon which a judgment or decree can be reviewed and or set aside. It  states;

Any person considering himself aggrieved;

“Any person who considers himself aggrieved

(a) by a decree or  order from which an appeal is allowed by  this Act, but from which no appeal has been preferred; or

“(b) by a decree or order from which no appeal is allowed by   this Act, may apply for a review  of judgment  to the court  which passed the decree or made the order, and the court  may make such order thereon as it thinks fit.”

18.  In the case of RUHANGI VRS KENYA REINSURANE COPORTAI, CIVIL APPEAL NO 208 OF 2006 (Unreported)

The learned HON. NYAKWEBA in considering whether the application   dated 22nd January, 2016 for review met the threshold for the same, relied on the ground of “any other sufficient reason”. He went on to disagree with the finding of HON. KITAGWA on the issue for interest  which the said magistrate had considered and ruled that interest was not awardable since there was no provision of time lines in the contract  between the parties.

19.     In Mulla, The Code of Civil Procedure Vol. III pages 3652 3653, it states:

“ The power  of review can be exercised  for correction of a mistake and not to substitute a view  such powers should be  exercised within the limits of the statute dealing with the   exercise of  power. The review cannot be treated as an    appeal in disguise. The mere possibility of two views on the  subject is not a ground for review. The review proceedings  are not by way of appeal and have to be strictly conformed  to the scope  of order 47 Rule of Code of Civil   Procedure…..

The review court cannot sit as an appellate court. Mere possibility of      two views is not a ground for review. This re-assessing evidence and pointing out defects in the order of  the court is not proper”.

20.  In the case of NYAMONGO & NYAMONGO ADVOCATES VRS KOGO E.A (2001) 173 at page 174-5, the court of appeal in part   stated as follows:

“Again, if a view adopted by the court on the original record  is a  possible one, it cannot be an error apparent  on the face  of the record  even though another view was also possible.  Mere error of wrong view is certainly no ground for review  although it may be for an appeal. As was said in the A.I.R  commentaries on the Code of Civil Procedure  by Chitaley   and Rao ( 4th Edition Vol. 3 at 3227. ”

“A point which may be good ground for appeal may not be a  ground for an application for review. This an erroneous view  of evidence or of law is no ground or a review though it may be a good ground for an   appeal”.

21.  In going through the Respondent’s application dated 22nd January, 2016 I find that it did not satisfy the conditions for grant of review as   there was no discovery  of new and important matters or evidence and a mistake or an error apparent on the face of the record that    required to be corrected. In regard to review jurisdiction the court of appeal in the case of RUHANGI VRS KENYA REINSURANCE  CORPORATION, CIVIL APPEAL NO 208 OF 2006 (unreported)   stated;

“It is important to bear in mind  that Order 44Rule 1 (now order 45  Rule 1) of the Civil Procedure Rules sets out the purview  of the reviewed  jurisdiction. A point outside that purview is not a ground for review. A pint which may be a good ground of appeal like an erroneous view of law or evidence is also not a ground for review. That a court reached   an erroneous conclusion because it proceeded on an   incorrect exposition of the law or mis- construed statute or   other provision of law is no ground for review. All these are    grounds of appeal”.

22.  It is this court’s view that the act of HON. NYAKWEBA overruling the  finding on interest by his sister, HON. KITAGWA was equivalent to a  review court sitting as an appellate court on a matter arising from a court of concurrent jurisdiction. And so, HON. NYAKWEBA’s   determination on 21st December, 2016 could not be construed being grounded on “any other sufficient reason” since he overruled a finding    on the issue of interest by his sister and considered his reasoning as being superior.

23. The Respondent having been aggrieved by the learned magistrate’s interpretation and or application of the law on the issue of interest, the  recourse was not in seeking a review of that decision but ought  to have  appealed against the decision since the trial court had become functus    officio after its decision was rendered on the said issue on 21st October,     2015.

24.   I am satisfied  that the learned principal magistrate HON. NYAKWEBA  erred  in overruling  the finding by  HON. KITAGWA (RM) by allowing the  notice of motion application  dated 22nd  January, 2016 as he clearly lacked jurisdiction  to  sit on an appeal on a judgment  delivered by his colleagues of concurrent jurisdiction on 23nd October, 2015.

25.  According, and for all the reason outlined above, this appeal is allowed with costs to the Appellant. The lower court ruling delivered on 21st December, 2016 is hereby set aside and the Respondents lower court application dated 22nd January, 2016 dismissed with costs.

Orders accordingly.

Delivered, dated and signed this 5th day of April, 2019.

LADY JUSTICE D. O. CHEPKWONY