[2004] KEHC 37 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (MILIMANI COMMERCIAL COURTS)

Civil Case 3521 of 1994

ANN MUTHONI PERTET.............................................. PLAINTIFF

-VERSUS-

PATRICK CAMPBELL MUNYUIRA......................... DEFENDANT

RULING

The applicant herein seeks the court's orders to review itsdecision made on July 17, 2003 or, in the alternative, requests thecourt to make such orders as are necessary pursuant to the plaintiff'sapplication dated May 31, 2001 and in particular that the saidapplication be deemed allowed in its entirety. The application alsoseeks an order that the costs thereof be provided for.

The application is based on the grounds that the factssubsequent to the court's decision of July 17, 2003 warrant theorders sought by the applicant herein, which orders are necessary forthe ends of justice and to prevent an abuse of the process of thecourt. It is a further ground that the plaintiff/applicant has suffered

andcontinues to suffer great harm and loss and shall sufferirreparable harm unless the orders sought herein are granted. Thelast ground is that there is an error on the face of the record. Theapplication is further supported by the annexed affidavit of ANTHONYM. KHAMALA, Advocate, who has the conduct of this matter onbehalf of the applicant. In that affidavit, Mr. Khamala summarisesthe history of matter between the parties and concludes by statingthat the current status quo is such that the only way of enforcing theorders of the court made on December 22, 2000 is by granting theorders sought by the plaintiff in the application dated May 31, 2001.

The application is opposed and the respondent's grounds ofopposition were filed in court on February 24, 2004. The groundsare that the motion is totally misconceived and an abuse of thiscourt's process, and that there is no order on record capable of beingreviewed under O.XLIV rule 1 of the Civil Procedure Rules.

It is also the defendant's case that the plaintiff's applicationdated 31st May, 2001 was heard and determined on merit andtherefore prayer 3 of the Notice of Motion is res judicata for allintents and purposes. The defendant/respondent further contends

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that the applicant has not come to court with clean hands and hasnot legally complied with the court orders of 17th July, 2003. Thealleged compliance with the orders of this court deponed inparagraphs 3 and 5 are a nullity ab initio, the process having beenobtained ex parte throughout. The defendant finally states that thesupporting affidavit is incurably defective and does not comply withthe mandatory provisions of O.XVIII rule 1 (3) and the courtprocedure rules and that it should be struck out.

While canvassing the application orally before the court, Mr.Khamala for the applicant referred to the court's order of July 17,2003 to the effect that a copy of the decree dated July 22nd 2002 be servedon the defendant's/respondent's advocates within 10 daysfrom July 17, 2003. He submitted that the defendant was duly andproperly served.. Mr. Khamala then requested the court to make adecision in terms of the plaintiff's application dated May 30, 2001 inwhich the plaintiff sought to implement the decision of Ransley,Commissioner of Assize as he then was. He then referred the courtto MAWJI v. ARUSHA GENERAL STORE [1970] E.A. 137, and also toRAWAL v. MOMBASA HARDWARE LTD. [1968] E.A. 392 in addition to

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Mulla's Code of Civil Procedure, 16th Edition, Vol-1 page 1322 on the"inherent power of the court: their nature and objects."

Mr. Khamala also submitted that the defendant stands incontempt of court since he was served by substituted service anddisobeyed court orders. He should, therefore, purge that contemptbefore he can be heard. And referring to the grounds of opposition,Mr. Khamala said that subsequent facts to a ruling can compel aparty to go back to court and have a decision revisited. Hesubmitted that res judicata does not apply in such circumstances. Heasked the court to allow the application.

In opposing the application on behalf of thedefendant/respondent, Mr. Njuguna referred to the order of July 17,2003 for a copy of the decree to be served within 10 days and saidthat that direction was not complied with. The advocates on recordwere not served, and instead the applicant came back to court exparte seeking an extension of time to serve by way of substitutedservice, and now alleges that the orders were disobeyed. Mr.Njuguna then stated that he had no instructions on that service, andhe could not say whether the defendant was served or not. He also

argued that the orders were illegal and therefore there was nocontempt.

Mr. Njuguna further argued that in his address, the applicant'scounsel had not stated why he wants the decision reviewed; thatthere was no error on the face of the record, and that there was nonew evidence. He therefore submitted that the applicant's counselhas not brought himself within O.XLIV. Counsel further argued thatthere was nothing to review. Furthermore, Mr. Njuguna contended,the court was functus officio since it had already delivered its ruling,and the issues in the application of May 31, 2001 were therefore resjudicata. He also maintained that since the court did not grant theorders in that application, the court is deemed to have refused them.The alternative to prayer 3 is a non starter as s.89 of the CivilProcedure Act requires that rules of procedure be followed to theletter. He finally submitted that the application dated May 31, 2001cannot be revisited as it is res judicata. He thereupon referred thecourt to UHURU HIGHWAY DEVELOPMENT LTD. v. CENTRAL BANKOF KENYA & 2 ORSauthority for the proposition that the principlesof res judicata apply to interlocutory applications as well. He then

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submitted that s.3A can only be invoked in the absence of any otherremedy, and that it can't be invoked in this application. He thereforeurged the court to dismiss the application.

In a brief reply, Mr. Khamala submitted that with regard to theextraction of the order for review, nothing stands in the way of thecourt taking steps to give effect to its decisions especially whendealing with a party who is not complying with orders. The ex parteorders were not illegal, nor is res judicata applicable as the courtmerely gave the defendants a chance to obey the court orders. Heurged the court to do justice and allow the application.

The facts of this matter are not in dispute. On July 17, 2003the court ordered that service of a copy of the decree dated July 22,2002 be served on the defendant's/respondent's advocates within 10days, and the defendant/respondent to obey the orders within 30days of service. For some reason which has not been clearlyarticulated, the plaintiff sought to serve the court order on thedefendant personally instead of serving it on the defendant'sadvocates as directed, and the effort to effect that service wentbegging because the defendant could not be traced. Thereafter, the

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plaintiff/applicant applied to serve the defendant/respondent bysubstituted service by advertisement in the newspaper, which wasgranted and which was duly effected. Counsel for the respondentnow argues that since the order for substituted service was grantedex parte, they were not aware of the order and they were not served,yet they were on record. He says, consequently, that he can't saythat the defendant was served or not, and that he has no instructionson that service. He also said the orders were illegal.

As intimated above, it would have been sufficient for theapplicants to serve the advocates for the respondent instead oftaking the longer and more expensive route of serving the defendantpersonally. This was the root cause of the confusion in this matter.And, as the matter stands now, the defendant's advocates have notbeen served with the decree dated July 22, 2001. And yet, there areorders in this case that the plaintiff is entitled to specific performanceof the contract for sale of the suit premises. What then, are thepowers of the court?

The application herein is brought to court under 0. XLIV of theCivil Procedure Rules and S.3A of the Civil Procedure Act. 0. XLIV

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deals with review, while S.3A deals with the inherent power of thecourt to make such orders as may be necessary for the ends ofjustice or to prevent abuse of the process of the court. O.XLIVallows for review of any order or decree upon discovery of new andimportant matter or evidence, or on account of some mistake or errorapparent on the face of the record, or for any other sufficient reason.On the facts of this case, it is plain that there is no new andimportant matter or evidence which was not within the applicant'sknowledge at the time when the order was made. Even though theapplicant alleges in the grounds upon which the application is basedthat there was an error on the face of the record, no such error hasbeen articulated. The grounds upon which the applicant argued herapplication however, point to one direction, i.e. that there is sufficientcause for the review of the orders. This is brought about by the factthat there is already judgment for the plaintiff and a court order tothe effect that the sale of the suit premises be specifically performed.In my ruling of 17th July, 2003,1 observed that the main issuebetween the parties was whether defendant/respondent has failed toobey court orders in a manner which would entitle the court to

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authorize the Deputy Registrar to step in and rescue the situation by

executing the necessary documents. The judgment delivered by

Philip Ransley, Commissioner of Assize, as he then was, was very

clear. The defendant was ordered, within a span of 30 days, inter

alia, to produce the title deed to the property and to give vacant

possession of the suit property to the plaintiff within the same period.

I did not agree with counsel for the defendant that obedience to such

an order required the subsequent and additional service on the

defendant of another order or decree. However, entirely in very

good faith, I chose to give him an opportunity to prove his bona fides

in this matter. I said-

"In the interests of justice, I therefore orderthat a copy of the decree dated 22nd July,2002 be served on the

defendant's/applicant's advocates within 10days of the date hereof. The

defendant/respondent to obey the orders within 30 days of service..."The only hitch here was that the advocates for the defendant

were not served. Having gone to the extent of having made an order

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for them to be served, I think it is only fair for them to be served, as

initially ordered, thereby giving them a chance to obey the order.

Section 3A of the Civil Procedure Act states-

"Nothing in this act shall limit or otherwiseaffect the inherent power of the court tomake such orders as may be necessary for theends of justice or to prevent abuse of theprocess of the court."In MAWJI -v-ARUSHA GENERAL STORE [1970] E.A. 137, and

reacting to s.95 in the Tanganyika Civil Procedure Code 1996 bearing

similar words, Sir Charles Newbold said, at page 139-

"I am satisfied that that section means that acourt should not be precluded by anythingincidentally set out in the Code or in the rulesmade under the Code from giving effect to itsdecision, and giving effect in any way whichwill result immediately in justice between theparties and in the saving of unnecessaryproceedings.... A court must have the powerunless it is most clearly set out to the contraryby legislation, to give effect to its decision../'From the foregoing, I think that the defendant's contention that

the court is functus officio cannot be sustained. The court has the

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power to make such orders as will lead to the plaintiff realising thefruits of the judgment entered in her favour. Until then, the courtcannot be functus officio. I also do not agree with the defendant'scounsel that by not granting orders sought by the application dated31st May, 2002, the court is deemed to have refused the said orderand that therefore prayer 3 of the Notice of Motion is res judicata.Far from it. The effect of the court's order was to suspend thegranting of the orders prayed for in order to give the defendant anopportunity to show his bona fides in this matter by obeying thecourt orders of 21st December, 2001. These orders required thedefendant to execute the relevant documents failing which the courtwould grant orders for the Deputy Registrar to do so in lieu of thedefendant. Unfortunately the advocates for the defendant were notserved as envisaged.

In his submission, Mr. Njuguna for the defendant/respondentsaid that they were never served even though they are still on recordfor the defendant. Clearly, it is not in the interests of justice that thismatter should any longer be stagnated by technicalities which onlyhelp to waste time and escalate costs. In the circumstances of this

case, in my view, justice will only be seen to be done if and when thedefendant obeys the orders of 21st December, 2001, or the plaintiffacquires the title and possession of the suit premises. In exercise ofits inherent jurisdiction under S.3A of the Civil Procedure Act,therefore, the court hereby vacates its orders for substituted serviceand makes the following orders-

1. The orders dated 21st December, 2001 be served on thedefendant's advocates within 7 days from today.

2. Should the defendant's advocates decline to accept service ofthe said orders for whatever reason, the orders sought in theapplication dated 31st May, 2002, will be deemed to have beengranted and the Deputy Registrar will proceed to execute thenecessary documents forthwith.

3. Upon the defendants' advocates accepting service, thedefendant should obey the orders within 30 days of service. Ifhe fails to do so within the said period, then the orders soughtin the application dated 31st May, 2002 will similarly be deemedto have been granted and the Deputy Registrar will proceed toexecute the necessary documents forthwith.

I think that this is the only way in which the judgment given andorders made on 21st December, 2000 can now be given effect.

Each party will bear its costs of this application.

Dated and delivered at Nairobi this..13th day of may 2004

L NJAGI

JUDGE