[2023] KEHC 22976 (KLR)

Automobile Warehouse (NKR) Ltd v Nyaundi (Civil Appeal 200 of 2019) [2023] KEHC 22976 (KLR) (3 October 2023) (Ruling)

Neutral citation: [2023] KEHC 22976 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Appeal 200 of 2019

SM Mohochi, J

October 3, 2023

Between

The Automobile Warehouse (NKR) Ltd

Appellant

and

Osumo Abima Nyaundi

Respondent

Ruling

1. There are two applications for the Court’s determination. Both applications have been filed by the Applicant. One is dated 25th July, 2022, whereas the other is dated 17th August, 2022. The Applicant’s applications are supported by his affidavits sworn on 25th July, 2022 and 16th August, 2022 respectively. The Applicant’s application is opposed by the Respondent through the replying affidavits sworn by Prakash Shah, the Respondent’s Managing Director, on 29th August, 2022.

2. The Applicant vide the first Application is seeking for orders among others: -i.That this Honourable Court be pleased to order for a review of its Ruling dated 5th May, 2022. ii.That this Honourable Court expunges from the record of Appeal the amended plaint dated 19th November, 2013 and statement of defence dated 23rd August, 2018. iii.That the Applicant be allowed to file his plaint dated 13th March, 2002 as part of records.iv.That the costs of the Application be awarded to the Applicant.

3. The application is predicated on the grounds on its face. In the supporting affidavit, the Applicant deposed that, he had never amended his plaint and that the Court’s ruling dated 5th May, 2022 was based on a non-existent amended plaint.

4. He averred that, the Appellant/Respondent’s statement of defence dated 23rd August, 2018, should be expunged since it does not exist as it was dismissed by the trial Court in its ruling dated 20th November, 2018 and no appeal was filed against it by the Appellant.

5. He prayed that, he be allowed to file his plaint dated 13th March, 2002 and thereafter it be deemed as properly filed, and that if not allowed to do so he will suffer irreparable loss and damage.

6. In the second application, the Applicant seeks the following orders: -1. That, the Applicant’s application dated 25th July, 2022 be heard first before the Applicant files his submissions.

2. That, the Applicant’s Application dated 25th July, 2022 be mentioned on 30th August, 2022.

3. That, the Applicant be allowed to file his submissions after the Applicant’s Application dated 25th July, 2022 has been heard and determined considering that it has triable issues, facts and law.

4. That, cost of the Application be awarded to the Applicant.

7. The Application is premised on grounds: -1. That, if the Applicant files his submissions before his application dated 25th July, 2022 has been determined the Applicant will be prejudiced and/or he will suffer irreparable loss and damage.2. That, if submissions are filed before the Application is heard and determined the Applicant’s pleadings will be closed and the application will be overtaken by events.3. That, the Respondent will suffer no prejudice if the Application dated 25th July, 2022 is allowed.

8. The application is supported by an affidavit of the Applicant wherein he deposed that the Deputy Registrar has been compromised by the Appellant to issue two contradictory dates, an early one for the Appellant and later date for him in favour of the Appellant.

9. He also stated that if the Respondent files his submissions his application will be overtaken by events since the pleadings will be closed.

10. In response to both applications, the Respondent’s aforesaid deponent averred the Respondent herein is apprehensive that if the appeal is heard on merits, it will certainly succeed thus his multiple incomprehensible applications and objections meant to delay or frustrate the hearing of the appeal.

11. He averred that both applications seek orders that are meaningless and cannot be granted by the Honourable Court. That he also seeks procedural reliefs that do not advance the proceedings herein rather the orders would befuddle the proceedings.

12. He averred that the Respondent’s filed its submissions pursuant to the Court’s directions on the disposal of the appeal and is a standard procedure to expedite the appeal.

13. He contended that, if indeed the Applicant believes the Deputy Registrar has been compromised, he ought to direct the said allegations to the relevant constitutional and/or statutory bodies and not this Honourable Court which lacks jurisdiction over the same.

14. He stated that, the orders to expunge the amended plaint and statement of defence from the record of appeal sought by the Applicant cannot be issued at this stage because the record of appeal is prepared under Rule 87 and there is no contemplation for change of the record of appeal prepared in the prescribed form.

15. He averred that, the record of appeal is prepared by the Appellant and shall contain the documents as set out in Rule 87, and as such the Applicant herein cannot dictate what ought to be included or excluded in the Appellant’s record of appeal.

16. It was his deposition that, the only way the pleadings could be excluded would be if the same were expunged during the primary suit and as such since the pleadings stated were not expunged by the lower Court but considered they have to be included in the record of appeal.

17. He believes that, both applications are gross violations of the law that seeks draconian orders beyond this Court’s purview and jurisdiction and as such they ought to be dismissed with costs.

18. The Applicant swore a supplementary affidavit on 7th September, 2022 wherein he averred that, the Respondent has not challenged any of his claims.

19. He also averred that, this Court has powers to expunge pleadings included in the record of appeal that were rejected at the lower Court.

20. The application was canvassed through written submissions.

Respondent’s/ Applicant’s submissions 21. The Applicant reiterated the averments contained in his Affidavits in his submissions. It was his position that the Court’s ruling dated 5th May, 2022 deserves a review as it was premised on the documents that were dismissed by the trial Court.

Appellant’s/Respondent’s Submissions 22. The Respondent submitted that the instant applications lack merit, are incomprehensible, and answer to the characterization of being a flagrant abuse of the Court process. It contended further the said applications have at their core the objective to convolute and lengthen the trial process and deny the Appellant the right to have its appeal heard and determined timeously on its merit.

23. The Respondent argued that the right to a hearing is not only constitutionally entrenched but also is the cornerstone of the rule of law. In support of this proposition, the Respondent relied on the case of Richard Ncharpi Leiyagu v Independent Electoral Boundaries Commmission & 2 others [2013] eKLR.

24. The Appellant submitted that it filed its appeal in conformity with the substantive and procedural dictates of the law appurtenant to the same pursuant to Section 79 of the Civil Procedure Act and Order 42 of the Civil Procedure Rules, 2010.

25. The Respondent argued that, Order 42 rule 13(2) of the Civil Procedure Rules, 2010is couched in clear and unambiguous terms and does not envisage any alternative with regards to its obedience and that there is no justifiable reason why this Honourable Court should deviate from obedience to the same and should steer clear of any attempts by the Applicant to subvert the rule of the law.

26. The Respondent submitted that, after the Court issued directions with regard to the disposal of the appeal the window that was hitherto available to the Applicant to present any objections to the jurisdiction of the appeal was closed.

27. He urged the Court to dismiss the applications

Analysis & Determination 28. The main issues for determination as crystallized from the applications, the response thereto, and the written submissions by counsel for both parties, are as follows:1. Whether the ruling dated 5th May,2022 should be reviewed?2. Whether the Amended plaint dated 19th November 2013 and the statement of defence dated 23rd August, 2018 should be expunged from the Records of Appeal?3. Whether the Applicant should be allowed to file his plaint dated 13th March, 2002 as part of records of appeal?

Issue No.1 29. 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; 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 thereon as it thinks fit.”[Order 45, rule 1. ] Application for review of decree or order.(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 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”

30. From the above provisions, it is apparent 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.

31. In the instant case, the Applicant’s sole reason for seeking orders for review is that, the ruling of 5thMay, 2022 was premised on an amended plaint that had been dismissed by the lower Court.

32. I have perused the annexed ruling of the lower Court delivered on 26th November 2014 and observe that, the trial Court declined the Applicant’s application seeking leave to amend its plaint. So essentially there is no amended plaint. The Appellant was aggrieved by the judgment of the lower Court and filed an appeal against it. The Applicant herein in response filed a preliminary objection (P.O) challenging the jurisdiction of this Court to hear the appeal on grounds that the Appellant did not file defence before the trial Court; that the Appeal is defective; that the appeal is frivolous, vexatious without merit and abuse of the Court process; and that the Appellant without any reason filed the Appeal late. The Court in its introductory part of the impugned ruling made reference to the amended plaint in issue however the finding of the Court was not premised on that plaint. The Court in its analysis considered the preliminary objection as filed without making reference to the plaint. I therefore find no justifiable ground to grant the review order sought by the Applicant.

Issue No.2 33. It is trite that the Record of Appeal should contain certain information and documents enumerated under Order 42 Rule 13(4) of the Civil Procedure Rules. Order 42 Rule 13(4) provides as follows:“(4)Before allowing the appeal to go for hearing the judge shall be satisfied that the following documents are on the Court record, and that such of them as are not in the possession of either party have been served on that party, that is to say:(a)the memorandum of appeal;(b)the pleadings;(c)the notes of the trial magistrate made at the hearing;(d)the transcript of any official shorthand, typist notes electronic recording or palantypist notes made at the hearing;(e)all affidavits, maps and other documents whatsoever put in evidence before the magistrate;(f)the judgment, order or decree appealed from, and, where appropriate, the order (if any) giving leave to appeal:Provided that—(i)a translation into English shall be provided of any document not in that language;(ii)the judge may dispense with the production of any document or part of a document which is not relevant, other than those specified in paragraphs (a), (b) and (f).”

34. There is no dispute that the lower Court dismissed an application seeking to amend the plaint and neither did it deem the filed statement of defence by the Appellant properly on record as demonstrated by the annexed ruling dated 26th November,2014 and 20th November,2018 respectively.

35. It is apparent that the matter before the lower Court was undefended. The Appellant has not disclosed what purpose these documents will serve in this Appeal.

36. Section 3A of the Civil Procedure Act provides as follows: -“Saving of inherent powers of Court. Nothing in this Act shall limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.”

37. The above power has now been broadened by the introduction in 2009 of overriding objective in Sections 1A & 1B and in 2010 by Article 159 of the Constitution.

38. The extent of inherent powers of the Court was eloquently explained by the authors of the Halsbury’s Laws of England, 4th Edn. Vol. 37 Para. 14 as follows;“The jurisdiction of the Court which is comprised within the term “inherent” is that which enables it to fulfil itself, properly and effectively, as a Court of law. The overriding feature of the inherent jurisdiction of the Court is that it is part of procedural law, both civil and criminal, and not part of substantive law; it is exercisable by summary process, without plenary trial; it may be invoked not only in relation to the parties in pending proceedings, but in relation to anyone, whether a party or not, and in relation to matters not raised in litigation between the parties; it must be distinguished from the exercise of judicial discretion; it may be exercised even in circumstances governed by rules of Court. The inherent jurisdiction of the Court enables it to exercise control over process by regulating its proceedings, by preventing the abuse of the process and by compelling the observance of the process … In sum, it may be said that the inherent jurisdiction of the Court is a virile and viable doctrine and has been defined as being the reserve or fund of powers, a residual source of powers, which the Court may draw upon as necessary whenever it is just or equitable to do so, in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them.”

39. The said documents though not formally expunged, did not form part of the lower Court record. I believe this Court has unfettered discretion to expunge documents from the Record of Appeal that had not been part of the lower Court record. I therefore proceed to expunge the amended plaint and statement of defence presented at pages 3-5 and 61-62 respectively.

Issue No.3 40. As already observed above the record of appeal should contain pleadings emanating from the Court below. The Applicant did not include the requisite plaint in their record. It is apparent therefore that the record of appeal as filed is incomplete.

41. In the interest of justice, I direct the Appellant to file and serve the supplementary record of appeal to include the plaint filed by the Applicant before the lower Court within Thirty (30) days from the date hereof.

42. Costs will be in the cause.It is so ordered.

RULING DATED, SIGNED AND DELIVERED AT NAKURU ON THIS DAY OF 3RD DAY OF OCTOBER, 2023. ..............................MOHOCHI SMJUDGE