[2023] KEHC 27010 (KLR)

Autocat International Ltd & another v Kadara & another (Civil Case E058 of 2023) [2023] KEHC 27010 (KLR) (21 November 2023) (Ruling)

Neutral citation: [2023] KEHC 27010 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Case E058 of 2023

DKN Magare, J

November 21, 2023

Between

Autocat International Ltd

1st Applicant

Autocat International Ltd

2nd Applicant

and

James Nyamwata Kadara

1st Respondent

James Nyamwata Kadara

2nd Respondent

Ruling

1. The applicant seeks the following orders in the application dated 27/9/2023: -a.That this Application maybe certified urgent and service thereof be dispensed with in the first instance.b.That this Honourable Court may be pleased to Order stay of execution of the Orders issued by this Honourable Court on 25th September, 2023 pendign hearing and determination of this Application.c.That this Honourable Court maybe pleased to vary, set aside and/or review the Order issued by this Honourable Court on 25th September, 2023 pending hearing and determination of this Applicationd.That this Honourable Court maybe pleased to vary, set aside and/or review the Order issued by this Honourable Court on 25th September, 2023 pending hearing and determination of this Suit.e.That in the alternative to prayer 3 above, this Honourable Court bee pleased to order that the Defendant/Applicant to retain possession of motor vehicle registration No. KCN 854C pending hearing and determination of this instant application and the application dated 27th July, 2023. f.That this Honourable Court be pleased to Order that the Respondent to release motor vehicle registration number KCM 694X to the Defendant/Applicant.g.That this Honourable court be pleased to Order that the Plaintiff/ Respondent to deposit the Log book of motor vehicle registration Number KCM 694X and KCN 854C in court.h.That this Honourable Court be pleased to Order costs of this Application.

2. The main contention is that the court made an error in ordering the release of the receive to the nearest police station.

3. The Court was conscious when making that decision. It may be well that, had I been sitting, I may not have made that order. However, the order was made by a court of co-ordinate jurisdiction.“80. 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 judgement to the court, which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”

4. Order 45 Rule 1 of the Civil Procedure Rules, 2010 provides as follows: -“45 Rule 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; 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 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 review of judgement to the court which passed the decree or made the order without unreasonable delay.”

5. To be able to deal with this mater I need to be assured of jurisdiction. In Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, justice Nyarangi JA, as he then was stated as doth;“With that I return to the issue of jurisdiction and to the words of Section 20 (2) (m) of the 1981 Act. I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Before I part with this aspect of the appeal, I refer to the following passage which will show that what I have already said is consistent with authority:“By jurisdiction is meant the authority which a court as to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited."A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction."

6. The court is enjoined to take up jurisdiction when it has the same and not take up when it does not. I am satisfied that an application for review is to be issued in extremely limited cases on the grounds that;a.There is an error appeared on the face of the record.b.Discovery of need evidence which could not with due diligence be available at the trial.c.Sufficient cause.

7. In respect of new evidence, it does not include re-interpretation of existing evidence. It also does not include correction of errors of law. The contention is that the order was made despite payment. Payment was in the original dispute. Though I find certain aspects of the case discomforting, there are not open to re-visit now. They are subject to evidence being tendered. This court is least suited to review the perception of evidence by court No. 5.

8. What I am invited to do is to set on appeal from a decision of the high court. This is not a true application for review but a designed appeal. This was seen from the record, where the applicant was of the view that the court was biased and thus resulted in the decision. When a court is biased, it is a question of law not a question of fact. In Kenya Postel Directories Ltd v Yellow Pages Publishing & Marketing Limited [2017] eKLR 39. Clearly, in my view, a claim of bias invites a closer interrogation. It cannot be said to be so obvious as to constitute an error apparent on the record. Such a claim entails an act of ascertaining and balancing all the circumstances which have a bearing on the suggestion that the judge was biased. The Court then asks whether a fair minded informed observer (“FMIO”) availed of the circumstances and having considered the facts would conclude that there was a real possibility that the judge was biased. The Court is required to determine the facts which the observer would know and take into account and then, determine whether the FMIO would conclude on those facts that a real possibility of bias existed. This is an objective test: see for example Poster v Magill [2002] 2 WLR 37, Kimani v Kimani [1995-98] 1 EA 134 per Gicheru JA (as he then was) and Standard Chartered Financial Services Limited & 2 Others v Manchester Outfitters (Supra).QUOTE{startQuote “}40. I am convinced that an allegation of bias is not like saying and hearing the word ‘Eureka’. Bias does not speak for itself unless there is actual bias. The Court has to do much more. Bias cannot constitute an error apparent on the face of the record.”

9. The Court in the above case was guided by the decision in Muyodi v Industrial and Commercial Development Corporation & Another [2006] 1 EA 243, the Court stated as follows:“In Nyamogo & Nyamogo -vs- Kogo (2001) EA 174 this Court said that 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 real distinction between a mere erroneous decision and an error apparent on the face of 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 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 or wrong view is certainly no ground for a review although it may be for an appeal. This laid down principle of law is indeed applicable in the matter before us.”

10. In any case this was not even an appealable order. It is issued at an interlocutory stage. It has not been firmed up. The main application dated 27/7/2023 is still pending. This court cannot express itself on any of the issues till the application is heard.

11. In the circumstances, I find no merit in the application for Review. It is accordingly dismissed with costs. The matter shall be listed for hearing and other directions forthwith.

Analysis 12. The parties here were precious true arguing on an interlocutory application. There is still an application dated 27/7/2023 which is yet to be heard. The Applicant has not complied with the orders of the court. They were not suggestions. The said orders should be complied with before we proceed to other issues.

13. The Court has perused the Replying Affidavit of Loma Makena. The court does not wish to dealt into exparte orders. There will be an embarrassing moment if we continue in the transitory that has been set before us. The best cause of auction is;a.To proceed and determine the application dated 27/7/2022b.Compliance with the orders hitherto given.c.Proceeding to the main suit.

14. In the circumstances the instant application is for dismissal with costs of 20,000/=.

15. The Court gives the following further directions.a.The application dated 27/7/2023 shall be heard on 23/11/2023 though oral arguments in court.b.The court shall not entertain any other application before 23/11/2023. c.Upon arguing that application this court shall give directions on the matter.d.Given that the current application was a waste of the court’s time, the Respondent shall have costs of Kshs. 20,000/= for the applications dated 27/9/2023.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 21ST DAY OF NOVEMBER, 2023. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGE