[2022] KEHC 10202 (KLR)

AKK v Children Court Milimani; SMM (Decree holder) (Judicial Review 497 of 2018) [2022] KEHC 10202 (KLR) (Judicial Review) (13 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10202 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review 497 of 2018

AK Ndung'u, J

July 13, 2022

Between

AKK

Applicant

and

Children Court Milimani

Respondent

and

SMM

Decree holder

Ruling

1. The ruling targets the Notice of Motion dated 17th December, 2021 in which AKK (hereinafter, the Applicant) moved this court for orders:1)That, the Honourable Court be pleased to review and/or set aside the Orders made on 23rd September, 2021. 2)That, the cost of this application be provided for.

2. The application is supported by the Applicant’s affidavit sworn on 17th December, 2021 and further based on grounds:a)That on the 23rd September, 2021 the Honourable Court delivered a ruling on the Decree Holder’s Application dated 30th November, 2020, allowing the same and issuing various orders.b)That Decree Holder did not bring to the attention of the Honourable Court that there had been a consent agreed on 9th February 2021 between the Decree Holder and Judgment Debtor with respect to payment of the taxed costs of Kshs. 158,640. c)That it was shocking to learn that notwithstanding the consent the Decree Holder did not inform the Court of the same nor did it record it as an order of the Court.d)That in the meantime the Judgment Debtor commenced to remit the amounts as agreed in the consent from the month of March 2021 to defray the taxed costs.e)That the Decree Holder continued with these proceedings until she received a Ruling on 23rd September, 2021 without mentioning to the Honourable Court that the Application was unnecessary as the taxed costs were being defrayed as agreed.f)That most surprisingly, even after receiving the ruling and aware that the Judgment Debtor had already settled the taxed costs as agreed, the Decree Holder proceeded to advise the Garnishee to comply with the Court Orders.g)That despite being aware that no taxed costs were owing the Decree Holder received and cashed the cheque from the garnishee which was clearly over and above the taxed costs.h)That the above captured reasons patently manifest a sufficient reason for the Honourable Court to consider the Application herein as contemplated under Order 45 Rule 1. i)It is in the interest of justice that the orders prayed herein be granted in the circumstances.

3. The mainstay of the application is that there had been a consent agreed on 9th February,2021 between the Applicant and the Respondent with respect to payment of the taxed costs of Ksh. 158,640. This consent was not brought to the attention of the Court which proceeded to deliver the ruling dated 23rd September, 2021 without its attention being drawn to the fact that the taxed costs were being defrayed as agreed.

4. It is the Applicant’s case that, despite being aware that the taxed costs had been settled, the respondent proceeded to cash the cheque from the garnishee. The Applicant’s plea therefore, is that a sufficient reason has been established to warrant a review.

5. In response to the application SMM (the Respondent) swore a replying affidavit on 17th January, 2022. She depones that the Applicant did not file or cause to be filed any consent to be adopted as orders of the court in the garnishee application. It is stated that the Applicant wilfully failed to participate in the garnishee proceedings.

6. The Respondent contends that the Applicant has failed to demonstrate the discovery of new and important matter or evidence which, after due exercise of diligence, was not within his knowledge or could not be produced by him at the time when the order sought to be reviewed was made. There is no mistake or error apparent on the face of the record and nor has any sufficient reason been advanced.

7. It is urged that the Applicant seeks to introduce new and fresh consent that has not within the court’s knowledge at the time of the ruling.

8. The garnishee opted not to participate in the proceedings relating to this application.

9. I have considered the application, the supporting grounds, the response and learned submissions on record. Of determination is whether the Applicant has met the legal threshold to warrant the orders of review sought.

10. The jurisdiction of the court to review its orders is provided for in Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. I proceed to set out the law as hereunder;Order 45 Rule 1(1) of the Civil Procedure Rules stipulates the grounds upon which an order may be reviewed:…Any person considering 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 hereby 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 …”Order 45 Rule 1(1) of the Civil Procedure Rules stipulates the grounds upon which an order may be reviewed:“45 …Any person considering himself aggrieved— (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or (b) 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 118 [Rev. 2020] Civil Procedure CAP. 21 [Subsidiary] error apparent on the face of the record, or for any 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”

11. The gist of the Applicant’s application is that there exists sufficient reason to warrant review of the ruling and orders of court dated 23rd September 2021 in that a consent agreed on by the Applicant (JD) and the Respondent (DH) on 9th February, 2021 in respect of payment of the costs of Sh 158,640 was not brought to the attention of the court during the garnishee proceedings that gave rise to the orders of 23rd September 2021. This, according to the Applicant is despite the fact that the costs were being defrayed as agreed.

12. The Court’s power to review its orders is discretionary and, as stated above, is strictly governed by the threshold set in Section 80 of the Civil Procedure Act and Order 45 of the Rules. In Otieno, Ragot & Company Advocates v National Bank of Kenya Limited[2020] eKLR the Court of Appeal stated;“Section 80 of the Civil Procedure Act and order 45 rule 1 of the Civil Procedure rules gives the court unfettered discretion to make such order as it thinks fit on sufficient reason being given for review of its decision. However, as it has been constantly stated this discretion should be exercised judiciously and not capriciously. In National Bank of Kenya Limited v Ndungu Njau (1997) eKLR this Court held that:“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 a sufficient ground for review that another Judge could have taken a different view of the matter…………..The main grounds for review are therefore; discovery of new and important matter or evidence; mistake or error apparent on the face of the record; or for any other sufficient reason and most importantly, the application has to be made without unreasonable delay.’’

13. Of more direct relevance to the current application is the Court of Appeal findings in Otieno, Ragot & Company Advocates v National Bank of Kenya Limited (supra) when it stated;“It is not in dispute that there was a mistake in the letter filed before the taxing officer. However, the mistake was not apparent on the face of the record. The taxing officer could not have known that there was another letter in existence and therefore taxed the bill in light of the evidence tendered before her or that the learned Judge should have known there was a letter not filed. The respondent failed to prove that it had discovered new evidence after the exercise of due diligence not within its knowledge or which could not be produced at the time when ruling was delivered. Order 45 Rule 3(2) provides that an application for review shall “…not be granted on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge or could not be adduced by him when the decree was passed or made without strict proof of such allegation. Other than the confusion in dates, no sufficient reason was given by the respondent as to why the letters were not filed before the taxing officer. This to my mind was an oversight on the part of the respondent but it was not a mistake apparent on the face of the record.Order 45 rule 1 does not excuse every error or mistake, even if inadvertent. It excuses those mistakes and allows a party to introduce documents which it could not lay its hands on even after the exercise of due diligence. There was no response to the replying affidavit in so far as it accused the respondent of lack of diligence. The discretion of the law to grant an order of review cannot be used to help a party who has shown lack of diligence’’.

14. In the instant suit, the applicant alludes to a consent entered into by the parties on 9th February 2021 in respect of settlement of the taxed costs of Ksh 158,640. In its directions dated 3rd December 2020, the court directed service of the Notice of Motion dated 30th November 2020 be served on the Applicant herein (JD) and the Garnishee. In its further directions dated 16th April 2021, the court noted that there was evidence of service on the said parties and directed that the parties file their pleadings. Despite this, the Applicant (JD) did not file any pleadings in the garnishee proceedings.

15. Since the consent alluded to by the Applicant was reached on 9th February 2021, the same was in possession of the Applicant during the pendency of the garnishee proceedings. The consent thus does not fall within the category of ‘new matter or evidence which after due diligence was not within the Applicant’s knowledge. ‘The said consent therefore, cannot be used as a ground for review in the context of new matter or evidence. Neither can the revelation of the consent at this stage satisfy the parameter of sufficient cause envisaged under Order 45 of the civil procedure rules.

16. That said, the Applicant should be able to move this court under its inherent powers to correct an anomaly, if at all, should the Respondent have received, through the consent and the garnishee proceedings a penny more than the entitlement of the taxed costs of Ksh 158,640. The Applicant would also be shielded from any costs arising from the garnishee proceedings should he be able to prove that the decreed sum had been paid before the garnishee proceedings were initiated.

17. In view of the foregoing and for reasons above stated, the application dated 17th December 2021 is without merit. I make the following orders;1. Application dated 17th December 2021 is dismissed.2. Each Party to bear its own costs.

DATED SIGNED AND DELIVERED AT NAIROBI THIS 13TH DAY OF JULY 2022. .............................A.K. NDUNGUJUDGE