Ramesh Services Station Ltd & Joseph Ndichu Kamau v Stephen Maina Macharia [2016] KEHC 4198 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL   APPEAL NO.  332B  OF 2014

RAMESH SERVICES STATION LTD)

JOSEPH NDICHU KAMAU)…........................APPELLANTS/APPLICANTS

VERSUS

STEPHEN MAINA MACHARIA …………...............................RESPONDENT

RULING

1. By a Notice  of motion  dated 26th  January  2016  and filed  in court on 1st February  2016, the appellants/applicants  seek from this court orders that:

1. Spent

2. Spent

3. That  this court be  pleased to  review  its ruling  delivered on 21st January 2016  and give an order  that the  whole security  deposited   by the appellants  do remain in court until the appeal herein is heard and  determined.

4. That costs of the application be provided for.

2. The application is predicated on the grounds that:

a) The  orders of this court  made  on 21st January 2o16  were to the  effect that  ¾  of the security  deposited  in court  be released d to the respondent.

b) That the appellant’s were dissatisfied with the said ruling and order and are seeking for a review of the same.

c) That the  applicant/appellants  complied  with all the  orders  of the court save for extraction of a decree which  has delayed  and which delay  is not due to their fault.

d) That they had always been ready to prosecute the appeal and their record  of appeal  was prepared  and filed on  2nd June  2015.

e) That the security deposited  in court includes  the respondent’s advocate’s costs  in the primary suit which  they will be unable  to recover in  a successful  appeal.

f) That the respondent  had claimed loss  of earning capacity and if the  security  is released  then the  appellants  will not   recover the  many in case of a successful appeal.

g) That the appellants  will suffer  irreparable  loss if the court does not intervene.

h) That it is  in the interest  of justice and fairness.

3. The application is further  supported by  the affidavit  sworn by Wahome Njagi  advocate  on 26th January 2016 reiterating  the grounds on the face of the  application, while explaining  that they  complied  with the order of 10th  March 2015 and prepared  the record  of appeal within 90 days  by 2nd June  2015  and took steps  to have the  appeal mentioned  to take directions  but that  in their  record of  appeal  they advertently forgot  to include  a certified  copy of the decree and  on 27th October  2015  they were  granted extension of  14 days  to file to  supplementary record  of appeal to include  the certified  decree  which  they thought  would be  sufficient  time; That they  then wrote  to the  Executive Officer  and Deputy Registrar in order  that they  way facilitate  the transfer  of the primary file to  this court and sought  to open  joint  account with  family bank  since  parties  had an  existing  joint  account there; and the bank  informed  them to do a letter  signed  by both parties  for them to open  another joint  interest  account on the meantime  the  finds  should  be remitted  to the  existing  account that they  had.  That they further  wrote  to the Deputy Registrar  requesting  for transfer of the funds  to the existing  joint account  as  ordered  and  send a letter to the  respondent requesting  them to  append their signature on a letter  addressed  to Family Bank but they  refused and returned  the letters  unsigned.  That a follow up letter of     4th November 2015 elicited no response; That  they paid   the thrown away costs  to the respondents  in the sum of  shs  30,000 but that  efforts to  get certified  copy of decree  had  not seen successful.  That there is  no affidavit of means  from the respondents who only filed grounds of opposition and that  therefore  if the  ¾ of decretal  sum is paid, they are not  guaranteed a reimbursement  should  the appeal  succeed  hence  they  will suffer  irreparable  loss since  the respondent  claimed that he  lost earning  capacity and that  delay  in extracting  decree is  beyond  their  control.

4. The respondents opposed the  application and filed grounds of  opposition dated  8th February 2016  through their  counsel Ms Obaga  & Company Advocates  filed on 9th February 2016  maintaining that  the application  is incompetent, misconceived and otherwise an abuse of the  court  process  and that the application does not  satisfy the conditions  for review  under Order  45 Rule  1 of the Civil Procedure  Rules.  That the allegation that the court  did not  consider  certain  facts in the ruling and order  of  21st January 2016  can only  be considered  as a ground of appeal  and not review; That the ruling  of 21st January 2016   was made  after the  court considered  all the facts  presented  to it by the parties  in terms of  compliance  of orders  of 27th October  2015.  That there is no new matter, the court considered all issues raised and canvassed by the parties and that this court should therefore not sit on an appeal of its own ruling and order; That the order of  27th October  2015  were  clear that  they were  to lapse  where the  conditions  were  not complied  with, the respondents  have been denied  their lawfully obtained judgment, the application is intended  to defeat  the  overriding objective of the law,  there is no demonstration of interest  to prosecute the appeal and that the respondent  would suffer  prejudice if this application is granted.  The parties advocates agreed to  have the application argued  by way of oral submissions.

5. The application   was heard before me interpartes on 1st March 2016 with Mr Wahome advocate  representing  the applicant and Ms Obaga Rose representing  the respondent.

6. In his brief submissions, relying  on the grounds and supporting  affidavit, Mr Wahome  argued  that they  were aggrieved  by  the order  of  21st January 2016  affecting  HCCA  332A and  332B of 2014.  That the court did not  take  into account   one of the core issues  which is the issue of the ability of the respondent to recompense  to the applicant  the ¾ of the decretal sum since  nowhere  in the said  grounds  did the  respondents  show that they  were  capable of  refunding  any of the  decretal  sum if the appeal is successful.

7. Further, that the respondents  were  awarded   damages for loss of  earning capacity and loss of  earning which  the appellant  had disputed albeit they pleaded  so they would  not be in a position  to earn  any money  and refund. In addition, it  was submitted  by Mr Wahome   that they were  unable to extract  decree  and that the  delay  was  very much regretted  hence they prayed for   review of the order of  21st January 2016.

8. In opposition to the  application, Miss  Obaga  submitted  relying on her  14  grounds of opposition filed on  9th February  2016   contending that the  application was Otiose.  That  what  the appellant /applicant  was seeking  was for this court  to sit  and  reconsider facts  presented  earlier  and arrive  at a different  decision  which is the role of  an appellate court.  That there are no new grounds presented to this court in the application, that were not presented on 21st January 2016. That Order  45 of the Civil Procedure  Rules  is clear  as to when  the court  can interfere with its  own  decision.  That  there  was  no new  and important  matter discovered  and that  there  was no mistake  on the face of the  record and there  was no  sufficient  reason  explained; That  the applicants  keep coming  to court  pleading  as if they had been disadvantaged  yet  the court had been very lenient  to them.  That the  issue of  decree  was presented  to the court on 21st January 2016  hence  it cannot  be a new matter  for this court  to review.

9. On the issue  of earning  capacity  and refund , it  was submitted that it  could not  be raised  now  since  the court  had already  made an order  for compliance, In addition, counsel for the respondent’s  submitted that decree had been  filed  subsequent  to the order  sought  to be reviewed  and  therefore  there   was no justification  for review.

10. In a brief  rejoinder, the appellant’s counsel Mr Wahome submitted  that they had approached  the court within Order  45 of the Civil  Procedure  Rules and complied  with  conditions for  review; that if the court had considered the issue  of recovery in case of  a successful appeal, then the  ruling  would  have been different. He urged the court to allow the  application and  apply the ruling in this  matter to HCCA 332A of  2014.

11. This  ruling  was to be delivered  on 29th  March 2016  which  regrettably fell on a  recess  day after  the Easter weekend  hence it  had to be given  another  date but parties were not served by the registry and on each occasion when the matter appeared on the cause list for delivery of the ruling, only one party would be in attendance hence the delay.

12. I have  conscientiously  considered  the  application  by the appellant/applicant, the grounds in support  thereof, the  supporting  affidavit, annextures  and submissions  by the applicant’s counsel. I have  also considered  the  grounds of opposition filed by  the respondent’s counsel  and the submissions  in court.

13. The law applicable  for review  is Section 80 of the Civil Procedure  Act  as supplemented  by Order  45  of the Civil Procedure Rules.  Under Section 80 of Cap 21, 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  therein as it thinks fit.

14. The  procedural  law under Order  45 Rule (1)  of the Civil Procedure Rules is  clear that :

Any person considering  himself aggrieved:-

By a decree or order from which an appeal is allowed, but  from which no appeal has been preferred; or

By a decree or order from which  no appeal is hereby allowed-  and  who from the discovery  of new  and important  matter or  evidence which after the exercise  of due  diligence, was not within his  knowledge  or could  not  be produced  by him at the time  when the  decree  was passed  or the order  made, or on account of some  mistake  or error apparent  on the face of  the  record, or for stay other sufficient  reason, desires  to obtain a review  of the decree or order, may apply for a review  of judgment  to the court  which passed  the decree or made the order without unreasonable  delay.

15. With  the above law in mind, and having   perused  the record  in this  matter, the application, grounds, supporting  affidavit, grounds of objection  and the rival submissions made by both parties  counsels  on record, the key question for determination is whether the applicant’s application for review  has merit.

16. Before I determine that issue, it is important to provide some  background that culminated into this application for review.

17. By a notice of   motion dated  30th July 2014  brought under  certificate  of urgency and under the then High Court Vacation Rules, under the Judicature Act, the applicant  herein (appellant  sought from this court orders  for stay of  execution  of decree of the lower court  in Milimani  CM CC 6346  of 2012  pending hearing  and determination of this appeal  on its merits.  The duty  judge  Honourable Waweru J did  certify  the matter as urgent  and  granted an interim  stay of  execution  for  7 days.

18. The matter  was later slated  for hearing on  16th January 2015  before me  and on that  date of  16th January 2015  I did grant  an interim stay  conditional upon the appellant  depositing  the decretal sum  into court within 14 days   pending interpartes  hearing of the application on 11th February 2015.  The parties agreed that  as the appeal  herein and  HCCA 322 B/014  are similar, orders that are made  in one file be  applicable to HCCA  332A/2014.

19. On 11th February  2015  when the parties’  advocates  Mr Wahome  for the  appellant  and Ms Obaga  counsel for  the  respondent appeared  before me, they sought  for time to negotiate  a settlement  and asked for a mention  dated to confirm  status  of  negotiations.  This court  accorded  the parties time to  negotiate  for  a settlement   if any and on 10th March 2015 the matter  was again up for  mention  when the advocates  for the parties  dictated  to the court  a consent  which they  duly endorsed in the following  terms, compromising   the  application dated  10th December  2014:-

1. There be   stay of execution of the judgment  and decree of  Milimani CMCC 7065/2012  pending  hearing and determination of the appeal herein.

2. That the money  deposited in court  be transferred into a joint interest earning account in the names of counsels for the  parties within  30 days  from the date hereof.

3. The appellant  to prepare, serve  and file  a record of appeal and do  all that is necessary  to prepare  the appeal  ready to be heard within 90 days  from the date hereof.

4. In default, execution to issue.

5. Costs of the application  shall be in the appeal.

6. Mention  on 9th June  2015 to confirm compliance.

20. Thereafter, on 27th October  2015, the matter again came up  before  me for mention when Miss Obaga reported  that the  applicants  were in breach  of the orders  recorded  by consent  on 10th March 2015.  She nonetheless conceded  that the applicants  could be  given  14 days   to comply. On the said date, Mr Wahome advocate  for the applicant  informed the court that   it  was  an oversight  on their part.  That they thought they had  complied  with the orders.

21. The court   then granted  the  applicant 14 days from  27th October  2015  to comply  with the orders and specifically, to file and serve a  supplementary record of  appeal which  was to include  a decree from the lower court.  The applicants were also granted 14 days to ensure funds deposited into court are released into the parties’ advocates’ joint account to be opened   at Family Bank and in default execution to proceed.  The applicant was also condemned to pay to the respondent kshs 15,000 on each of the two appeal files HCCA 332A/2014 and 332B/2014.  I also  directed the Deputy Registrar  to call for the lower court  file and  I  fixed the matter  for mention on 17th November  2015.

22. On 17th November  2015  this  court  was   indisposed hence the matter  was placed before  Ms Wangila  Deputy Registrar.  Parties advocates  attended the  mention and  the Deputy Registrar  set it for mention  on 26th  November  2015   on which  latter date  the court  was not sitting hence  the parties  fixed the matter for   21st  January 2016 for directions.  On 21st January  2016, Ms Obaga  and Mr  Wahome  appeared before me and Ms  Obaga  submitted  that as  the orders of  27th October  2015  had not been  complied  with,  the sums of money deposited in court should be released to her clients.  Mr Wahome on the other hand  responded that  indeed they had not complied  with because if  he challenges  they had been experiencing.  He  stated that  they had complied  by paying costs  of shs  15,000 as ordered  and that they had also written asking for the  primary file  to be availed to  the court.  That they had also experienced challenges availing decree to enable them file a supplementary record of appeal.  On the issue of depositing  of the money into a joint  interest earning account  with Family Bank, Mr Wahome  submitted that  the bank had  advised that  since there  was another account  with them they could use  the same account, which prompted  Mr Wahome’s  firm to write to  the court to release  the money to  the  said account.  Further, that  despite   personal visits  to the lower court, they  had not been  able to get  a decree.  He therefore stated that  he needed  more time  to get a certified copy  of decree and  urged that the monies  deposited in court remain  in court as they deal with the issue of a certified  copy  of decree and record of appeal.

23. In rejoinder, Ms Obaga  contended that  the appellant  had failed to comply with  orders of 27th October 2015  which  were  in addition to the ones of  10th March 2015  and that her firm  had prepared  a draft decree and send to Mr Wahome’s  firm for approval but that   from   2nd November  2015, there had been no response  or approval.  She  also denied ever being  aware that the money  was to   be deposited  in another  account relating to a totally different matter.  She denied  being given any account opening  forms by the appellant’s counsels.

24. In the brief ruling delivered on the same day of 21st January 2016 at 2. 30pm, and having considered the parties’ advocates submissions that morning.  I made the following orders:-

1. That the  time for  filing of supplementary record of appeal is hereby enlarged  by a further  21 days  from the date  hereof .

2. That the respondents shall be paid ¾ of all the decretal sum already deposited in the court forthwith.

3. The balances  thereof  to be retained by the court  until the   appeal is heard  and determined.

4. That  this ruling and order  shall and hereby applies to HCCA 332B of 2014.

25. It is  the above orders  that prompted  the applicant to file  this application dated  26th January  2016 seeking for review  of my said  orders  on account that the court did not take  into account  the respondent’s inability  to repay  the decretal sum  should the  appeal herein  succeed, and that  therefore  the appellant shall suffer  irreparable  loss and  the appeal shall be  rendered  nugatory  if the ¾  of the decretal sum in  both appeals  is paid out to the respondent  before the  appeal is  heard and determined.

26. The big  question therefore, based  on the above  chronology of the  facts as  exemplified on record is, would this court be seized  of the jurisdiction  to review  its orders of  21st January  2016  on account that  it did not  take into  account  or consider the issue  of recovery  in case  of  a successful appeal and that had  the court  considered  that issue then the  ruling  would have  been different?

27. The applicant’s grounds and supporting affidavit  as submitted  on  heavily   state that  the respondent   has no means and that  he did not  swear any  affidavit of means yet  he  was  awarded  loss of earning capacity and loss of earnings which  was  disputed by the applicant.

28. The power to make orders  reviewing  its own orders  is an unfettered  discretionary power  of this court.  However, from the  onset, I must explicitly  state  that the applicant’s  right to seek review  of this court’s orders cannot  be successfully maintained on the basis  that the  decision  of the court   was wrong  either on  account of  wrong application of the law or  due to failure to apply  the law  or at all.

29. Failure by this court to consider the issue of the capacity of the respondent to repay the decretal sum should the money be paid to him and the appeal succeeds, is not and does not fall in any of the categories of conditions to be fulfilled for a review to be allowed.  It would be an erroneous  conclusion of evidence. (see Pancras T. Swai V Kenya Breweries Ltd [2014] e KLR.

30. The Court of Appeal in the National Bank of Kenya  Ltd V Ndungu Njau CA 211/96  had  this to  Say concerning  review:-

“ A review  may be granted  whenever the court  considers  that it is necessary  to correct  an apparent  error or omission  on the part of the court.  The  error or omission must be  self evident  and should not  require  an elaborate  argument  to be established.It  will not be sufficient  ground for  review that  another judge  could have  taken a different  view of the  matter.  Nor can it be a  ground for  review that the court   proceeded  on an incorrect exposition  of the law  and reached  an erroneous  conclusion  of  law misconstruing  a statute or other  provision of  law cannot be ground  for review”.  ……The learned judge made   a conscious decision  on matters  in controversy and exercised  his discretion in favour  of the respondent.  If he had reached a wrong conclusion of law, it would be a good ground for appeal but not for review.  Otherwise  we agree that the learned judge  would be  sitting in appeal on his own judgment  which is not   permissible  in law.  An issue   which has been  hotly  contested  as in this case  cannot be   reviewed  by the same  court which  had  adjudicated  upon it.”

31. In Francis  Origo & Another  V Jacob Kumah Mungala ( CA 149/2001 the Court of Appeal  considered  a matter where  the High Court  had dismissed  an application for  review  because the applicants  did not show that  they had made discovery of new and important  matter or evidence  as the witness they intended to call was all along  known to them  and that in  any case, the applicants had filed an appeal which   was  struck out   before filing of the  applications for review.  The Court  of Appeal pronounced  itself  as follows:-

“ Our parting shot is that  an  erroneous  conclusion of law or  evidence  is not a ground for  a review  but may be a  good ground for appeal.  Once the appellants took the option of   review rather than appeal they were proceeding in the wrong direction.  They have  now come  to a dead end.  As for this appeal, we  are satisfied  that the learned  commissioner   was right  when he  found that   there  was no basis for  the appellant’s  application for  review.  We have  therefore  no option but to dismiss  this appeal  with costs  to the respondent.”

32. In Abasi Belindar Fredrick Kangwana  & Another [1963] EA 557  Bennet  J (cited  with approval) by the CA in Pancras  T. Swai (supra) case held that

“ a  point which may be a good  ground of appeal may not  be a good ground for an application  for review   and an erroneous  view  of evidence or a law  is  not a  ground for review  though it  may be a good ground  for appeal.”

33. In the instant  case, it is very  clear  to my mind  that the applicant   is basing its application  for review on this  court’s failure  to consider  evidence that the  respondent   was a man of straw and therefore he could not pay  back the decretal  sum  were the  appeal to  succeed.  It  will however be  noted that  the issue of  whether  or not the  respondent  was a man of means  was  compromised by the consent  order of  stay recorded  on 10th March 2015.  The parties opted not to argue  the application and agreed  on terms which  this court adopted.  They were also emphatic in their consent   that in default, execution to issue.  Again  when they  appeared  before me  on 27th October  2015  they agreed  to enlarge  the period  for compliance  of the orders of   10th March  2015  to  14 days.  Nowhere   in the cause of  proceedings  herein, not even in the parties  advocates submissions made  on 21st January 2016  did Mr Wahome  allude to the respondent’s inability  to pay the decretal sum should  the court   order that the said  decretal sum be  paid to the  respondent as urged  by Ms  Obaga  counsel  for the respondent.

34. This court  was not seized  of the jurisdiction  to resuscitate  an issue  which the  parties had  and  were conscious   of when  they entered  into the consent of 10th March  2015  providing  for themselves  timelines being conditions  for stay and  even providing  for  the consequences  of non compliance  with the said  conditions.  It therefore follows that  what Mr  Wahome  is asking   this court to do  is to  sit  on its own  appeal.  It is also clear to this court   that the appellant is asking   this court to reconsider the consent of 10th March 2015 by reopening the parties positions before the consent was recorded.

35. It  was expected that where there is default in complying with  court orders  within  the agreed  or set timelines, the applicant  would be  beseeching  this court to enlarge  time within which compliance  should be  met.  Instead, in their  application  and submissions, the  applicant   is asking  the court to  review   and set aside  its order of 21st January  2016 that  ¾ of the decretal sum be paid to the respondent  and  that instead,  the court should  order that the whole  of  the decretal  sum be retained  by the court  and the  appellant  pursue the issue  of the filing of  decree by  way of a supplementary record  of appeal.

36. This court did indeed grant  by consent of  both parties  advocates enlargement   of time for  filing  of decree and  for depositing  of the monies  into the bank  account to be  opened by both parties advocates.  However, when it  became clear  that the applicant   was not interested  in complying  with the court  orders  and  was instead  taking  the respondent  and indeed  this court in circles, this court  had to make the orders that  it did make on  21st January  2016  to give effect  to its orders of 10th March  2015  and  27th October  2015.  The applicant  has not set out in their  application or even  submissions by counsel, any  of the conditions  necessary for  the grant  of review under  Order  45 Rule  1  of the Civil Procedure  Rules.  Mr Wahome simply submitted that they had complied with the conditions/principles   for review.  There  was no submission that  there  was an error  apparent  on the face of the record  and no error  of fact was ever  pointed  out by the applicant’s  counsel.  It  was also not  mentioned or  submitted that  there  was a new  and important matter  which after  exercise of due diligence,  was not  within its  knowledge or could not  be produced  at the time  when  the order was made.

37. The applicant’s counsel has not submitted  on what they  consider to be sufficient  reason for  consideration by this court.  Failure to  consider an  issue which   was part of the  initial  arguments  for  stay pending  appeal is not  sufficient reason  for this court to  review  its orders of  21st January 2016.  This court is  aware that  any other  sufficient  reason, it has been held, need not be  analogous with the other grounds   set out in the rule under  Order 45  of the Civil Procedure   Rules( see  Wangechi Kimata  & Another V Charan Singh  CA 80 of 1985. Besides  the claim that this court failed  to consider  evidence of   the respondent’s  incapacity  to repay the decretal sum, the applicant did not  advance any other sufficient reason, yet  the orders of  10th March 2015 and  27th October  2015  were made by  consent  of both parties with a default  clause  that in  default, execution  was to proceed, thereby fully compromising the application for stay. In addition, failure to consider evidence is not an error apparent on record or a new and important matter. That error is only amenable to an appeal and not a review.

38. For all the above reasons,  I find no merit  in the  application for review as filed and urged by the appellants and accordingly I proceed to dismiss the application by the applicant  dated  26th January 2016  with costs  to the respondent. This ruling shall apply to HCCA332A of 2014 as agreed by the parties.

Dated, signed and delivered in open court at Nairobi this 18th day of July, 2016.

R.E ABURILI

JUDGE

In the presence of:

Mr Wahome for the appellants/applicant

Rose Obaga for the Respondent

Court Assistant: Adline