[2023] KEHC 26487 (KLR)

Ali & another (Suing as the Administrator of the Estate of the Late Hussein Asman Ali) v Multiple Hauliers E.A.LTD (Civil Suit 2 of 2016) [2023] KEHC 26487 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26487 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Suit 2 of 2016

FROO Olel, J

December 14, 2023

Between

Hassan Osman Ali

1st Plaintiff

Alima Hassan Ibrahim

2nd Plaintiff

Suing as the Administrator of the Estate of the Late Hussein Asman Ali

and

Multiple Hauliers E.A.LTD

Defendant

Ruling

A. Introduction 1. The application before this court for determination is the Notice of Motion application dated 6th April 2022 brought pursuant to provisions of Section 80 of the civil procedure Act, Order 45 Rule (1) of the Civil Procedure Rulesand all other enabling provision of law. By the said application, the defendant/applicant seeks to review the judgment delivered on 3rd August 2017 (which was in their favour) and seeks that this court awards a higher multiplicand as the court may deem just and appropriate.

2. The application is supported by a supporting affidavit sworn by the 1st plaintiff Hassan Osamn Ali dated 6th April 2022. The applicant avers that in his witness statement, he had sworn that his deceased brother had a girlfriend, with whom they had a child, but at the time the matter was heard, she had gone back to Somali. The said girlfriend had after the judgement was delivered had come back to Kenya with two children which she claimed the deceased had sired and left behind as dependents. Further through the deceased girlfriend, he had learnt that the deceased had a Safaricom line 0723407190, which was registered under the deceased name and he had managed to retrieve the deceased Mpesa statement for court’s consideration.

3. Further the birth certificates and Mpesa statement could not be availed at the time of trial as they were not within the custody and/or knowledge of the applicants and therefore the same could not be placed before court dispute due diligence. The court was thus urged to admit the same as additional evidence and consider the same while reviewing the said judgment.

4. Further the applicants did content that the trial court did err in calculating the monthly income of the deceased. The bank statement produced did show that on average he would save Ksh 35,400/= per month. If indeed that was his savings, it could be safely assumed that his ordinary income would be twice or thrice the said amount of money saved. Based on the above facts, this court was urged to correct the error on the face of the record by adjusting the multiplicand used and ration of dependency. The applicant thus urged this court to allow the said application as it was merited.

5. The Respondent did oppose this application by filing its grounds of opposition, where they stated that the court was functus officio and lacked jurisdiction to entertain the application as filed. The only option the plaintiffs/applicants had was to proffer an appeal against the decision of the court with regard to the multiplicand used. Further it was wrong for the applicant to seek to adduce new evidence long after the suit had been completed and prosecuted with finality. The respondent thus urged this court to dismiss the said application with costs.

B. Determination 6. I have carefully considered the Application before court, its supporting affidavit, the grounds of opposition filed in opposing the said application and submissions filed by the respective parties. The issues, which arise for determination is whether;a.The applicants should be allowed to adduce new evidence.b.Secondly if this court should review part of its judgment dated 3rd August 2017 to use a higher multiplicand.

Should be allowed to adduce new evidence 7. Generally Section 78 of the civil procedure Act, order 42 rules 27, 28 and 29 of the civil procedure rules are the legal basis for seeking to allow additional evidence, but the same usually relates to matter on appeal not matters on review.

8. The supreme court in the case ofMohammed Abdi Mohammed Vrs Ahmed Abdulahi Mohammed & 3 others (2018) eKLR laid down the following principle’s for allowing additional evidence;a.The additional evidence 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 be obtained with reasonable due diligence for use at the trial, was not within the knowledge of, or could not have been produced at the time of the suit or petition by the party seeking to adduce the additional evidence;d.Where the additional evidence sought to be adduced removes any vagueness or doubt over and has direct bearing on the main issue in the suit;e.The evidence must be credible in the sense that it is capable of belief;f.The addition evidence must not be voluminous making it difficult or impossible for the other party to respond effectively;g.Whether a party would reasonably have been aware of and procured the further evidence in the course of the trial is an essential consideration to ensure fairness and due process;h.Where the additional evidence discloses a strong prima facie case of willful deception of the court;i.The court must be satisfied that the additional evidence is not utilized for purpose of removing lacunae and filling gaps in evidence. The court must find the further evidence needful;j.A party who has been unsuccessful at the trial must not seek to adduce additional evidence to make a fresh case in the appeal, fill up omissions or patch up the weak points in his/her case;k.The court will consider the proportionality and prejudice of allowing the additional evidence. This requires the court to assess the balance between the significance of the additional evidence, on the one hand, and the need for swift conduct of litigation together with any prejudice that might arise from the additional evidence on the other hand.”

9. In this era of global mobile communication, it is inconceivable and it has not been sufficiently proved that the applicants were not able to communicate with their sister in law even if she relocated to Somali and/or did not know of the deceased Safaricom Mpesa line. With simple due diligence they would have availed the evidence they seek to now introduce at the time of trial. Secondly the said evidence seeks to fill in the gaps and/or patch up weak points in their case and if such evidence is allowed it will definitely prejudice the respondent and trample on their right to fair trial. Thus the said prayer cannot be allowed.

Should the court review part of its judgment dated 3rd August 2017 to use a higher multiplicand. 10. On this issue, Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules provides as follows: -Section 80 Review“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; orb.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.”[Order 45, rule 1. ] Application for review of decree or order.“1. (1)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; orb.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 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.(2)A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review”.

11. From the above provisions, it is clear that while Section 80 of the Civil Procedure Act grants the court the power to make orders for review, Order 45 sets out the jurisdiction and scope of review by hinging review to discovery of new and important matters or evidence, mistake or error on the face of the record and any other sufficient reason.

12. The Code of Civil Procedure, Volume III Pages 3652-3653 by Sir Dinshaw Fardunji Mulla 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 ground for review. The review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, rule 1, Code of Civil Procedure…The review court cannot sit as an Appellate Court. Mere possibility of two views is not a ground of review. Thus, re-assessing evidence and pointing out defects in the order of the court is not proper.”

13. The Court of Appeal had the following to say in an application for review in the case of National Bank of Kenya Ltd vs Ndungu Njau.“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. 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 a ground for review.”

14. The same position was upheld in the the Court of Appeal’s decision of Anthony Gachara Ayub vs. Francis Mahinda Thinwa [2014]eKLR which quoted with approval the judgment of the High Court in Draft and Develop Engineers Limited vs. National Water Conservation and Pipeline Corporation, by stating:“An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long drawn process of reasoning or on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in 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.”

15. The Court of Appeal in Mahinda vs. Kenya Power & Lighting Co. Ltd [2005] 2 KLR 418 also expressed itself as follows:“The Court has however, always refused invitations to review, vary or rescind its own decisions except so as to give effect to its intention at the time the decision was made for to depart from this would be a most dangerous course in that it would open the doors to all and sundry to challenge the correctness of the decisions of the Court on the basis of arguments thought of long after the judgement or decision was delivered or made.”

16. A review may thus 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 however 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. Nor can it a ground for review that the Court proceeded on an incorrect exposition of the law and reached an erroneous conclusion. Misconstruing a statute or other provisions of the law therefore cannot be a ground for review.

17. Having considered the parameters of review, I do find that there is no basis to review the judgment herein as the error which the applicant seeks to have this court rectify can only be established by a long-drawn process of reasoning or on points where there may conceivably be two opinions. The applicant ought to have filed an appeal to challenge the said judgment and not seek to review the same.

C. Disposition 18. The upshot is that the application dated 6th April 2022 is therefore wholly unmerited and the same is dismissed with costs.

19. The costs are hereby assessed at Ksh. 30,000/= all inclusive.

20. It is so ordered.

READ, SIGNED AND DELIVERED VIRTUALLY AT MACHAKOS ON THIS 14TH DAY OF DECEMBER, 2023. FRANCIS RAYOLA OLELJUDGEIn the presence of: -Mr Muturi for plaintiffMr. Ooko for defendantSam/Susan court assistant