[2023] KEHC 25362 (KLR)

Britam Insurance Company Limited v ANO (Suing as the next of kin and next friend of TMN (Minor) (Civil Appeal 231 of 2017) [2023] KEHC 25362 (KLR) (Civ) (17 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25362 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 231 of 2017

DAS Majanja, J

November 17, 2023

Between

Britam Insurance Company Limited

Appellant

and

ANO (Suing as the next of kin and next friend of TMN (Minor)

Respondent

Ruling

Introduction And Background 1. In a judgment rendered on 30. 01. 2020, the court allowed the appeal. It set aside the default judgment of the Subordinate Court dated 08. 09. 2016 entered against the Appellant. As a condition for setting aside, the court directed that the sum of Kshs. 390,000. 00, being the subject of the suit as reimbursement for medical expenses incurred under a personal accident insurance cover was to be deposited in a joint interest-earning bank account of the counsel of the parties or in court within 30 days from the date of the judgment (“the Judgment”).

2. The Respondent has filed the Notice of Motion dated 12. 07. 2021 seeking to review, vary and set aside the Judgment pursuant to inter alia Order 45 Rule 1 and 2 of the Civil Procedure Rules, section 3, 3A of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) and section 4 and 9 of the Children’s Act. The application is supported by the grounds on its face and the Respondent’s supporting affidavit and further affidavit sworn on 12. 07. 2021 and 04. 02. 2022. It is opposed by the Appellant through the replying affidavit of its Head of Legal Department, Jackson Kiboi, sworn on 06. 08. 2021. The Respondent has also supplemented its position by filing written submissions.

3. The Respondent’s application is grounded on the position that depositing the said Kshs. 390,000. 00 before the case can proceed as directed by the court would be prejudicial to the Respondent given predicaments that were unforeseen as well as the Covid situation that affected the operations of the Respondent’s law firm. The Respondent avers that on delivery of the Judgment, the Respondent got bereaved and soon thereafter other subsequent predicaments followed which were explained to the Appellant vide a letter dated 02. 07. 2020. That prior to the delivery of the Judgment on the appeal, the court had dismissed the Appellant’s substantive application for stay pending appeal and that this dismissal prompted the Respondent to settle the claim on the 13. 11. 2017 and that the decretal sum was expended towards the subject minor child’s dental complexities that arose as a result of the accident whose best interest stood to be compromised in contravention of his right to health as provided under the Children’s Act.

4. The Respondent claims that she has to date expended more than Kshs. 800,000. 00 towards the treatment complexities aforesaid and the child was due for a surgery procedure on diverse dates in December 2021. The Respondent avers that she has no problem refunding the money once the matter is heard denovo and a finding is made otherwise and thus, it will be in the interest of justice that the court reviews the Judgment pursuant to the new facts that were not within the knowledge of the court prior to the delivery of the Judgment.

5. The Appellant opposes the application and urges the court to dismiss the application. That the application introduces new facts, that were not in issue in the appeal or the lower court, for hearing and determination by the Court, which is highly prejudicial to the Appellant. That the application is fatally defective as the Court is functus officio after having heard and determined the appeal, which arose from a ruling on an interlocutory application and that the same offends the provisions of section 79A of the Civil Procedure Act as it seeks to alter a decree of the Court in a manner not prescribed in law.

6. The Appellant claims that at all material times, all parties to this suit were aware of the outcome of the appeal, and as duly acknowledged by the Respondent, the sum of Kshs. 390,000. 00 was paid to Respondent, despite the court directing that the aforesaid sum be deposited in a joint interest earning bank account. The Appellant confirms that through the letter dated 14. 11. 2017, the Appellant forwarded Kshs. 390,000. 00 with express instructions to the Respondent’s advocates to have the sum deposited in an interest earning account on the premise that should the appeal succeed, the money would be claimed from the Respondent’s advocates. Contrary to the advice, the Respondent’s advocates transferred the money to the Respondent.

7. The Appellant states that by the letter dated 12. 04. 2021, its advocates requested the Respondent’s advocate to comply with the Judgment by depositing the Kshs. 390,000. 00. The Appellant complains that the Respondent now seeks additional funds contrary to the Judgment. That it is a stranger to the averment that the Respondent has incurred additional expenses of Kshs. 800,000. 00. The Appellant submits that the Respondent has not accounted for the money or demonstrated that she is capable of refunding the amount. Further, that the Respondent has not provided any evidence that the subject minor is to undertake any medical procedures as alleged.

Analysis and Determination 8. In order for the Respondent to succeed in her application for review, her case must be within the ambit of section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. She is required to show either that there was an error apparent on the face of record or that there has been discovery of new and important matter which was not available despite the exercise of due diligence or for any other sufficient reason.

9. The Respondent’s application is anchored on an apparent error on the face of the record and discovery of new facts that were not within the knowledge of the court prior to delivery of the Judgment. The Court of Appeal in National Bank of Kenya Limited v Ndungu Njau [1996] KLR 469 explained what constitutes an error of law apparent on the face of the record and the scope of review as follows: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 ground for review.

10. On the ground of discovery of new information, the Court of Appeal in Rose Kaiza v Angelo Mpanju Kaiza [2009] eKLR held as follows:The motion before the superior court was based on the discovery of new facts. However, it is not every new fact that will qualify for interference with the judgment or decree sought to be reviewed. In the words of the rule itself, it is“………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…….”The construction and application of that provision has been discussed in many previous decisions but we shall take it from the commentary by Mulla on similar provisions of the Indian Civil Procedure Code, 15th Edition at page 2726, thus:“Applications on this ground must be treated with great caution and as required by r 4(2) (b) the Court must be satisfied that the materials placed before it in accordance with the formalities of the law do prove the existence of the facts alleged. Before a review is allowed on the ground of a discovery of new evidence, it must be established that the applicant had acted with due diligence and that the existence of the evidence was not within his knowledge; where review was sought for on the ground of discovery of new evidence but it was found that the petitioner had not acted with due diligence, it is not open to the Court to admit evidence on the ground of sufficient cause. It is not only the discovery of new and important evidence that entitles a party to apply for a review, but the discovery of any new and important matter which was not within the knowledge of the party when the decree was made.”

11. It is not in dispute that the Respondent has not deposited the sum ordered by the court in a joint earning account or in court as directed. She now seeks the court’s indulgence as she has already expended what was forwarded to her except the Kshs. 150,000. 00 deposited in court. She undertakes to remit the balance once the matter is heard de novo and that the reasons for her not complying earlier are valid and were beyond circumstances beyond her control. According to the Respondent, her advocate was not under any obligation to hold the money in an interest-earning account as advised by the Appellant. While this could be true, it should be noted that the court did not direct that the Kshs. 390,000. 00 should be from the money that had been remitted to the Respondent by the Appellant. All the court said was that “the sum in contention, Kshs. 390,000. 00 be deposited in a joint interest-earning bank account of the counsel for the parties or in court within 30 days from the date hereof”. Therefore, whether the Respondent spent this money or not is inconsequential as it did not matter where the Kshs. 390,000. 00 was to come from as long as it was deposited in court or in a joint interest-earning bank account of the parties’ counsel.

12. The reasons given by the Respondent are clearly not errors apparent on the face of the record. There was no error in the court exercising its undoubted discretion in ordering the disputed sum to be secured. There was also no new information discovered by the Respondent as she was always aware that the Kshs. 390,000. 00 had been remitted to her and the money she was ordered to be deposited had already been dissipated.

13. The only other ground for review is whether the Respondent has established, “there is sufficient reason to warrant the review sought”. The Respondent has outlined a litany of reasons why she had not been able to comply with the order including economic challenges and financial effects of the COVID-19 pandemic and expending the money on the child’s medical expenses. While I am sympathetic to the Respondent’s plight, the fact is that the dispute before the court is between two parties and the court is bound to ensure that equality of arms. By ordering the deposit of the disputed sum, the court in setting aside judgment put the parties in the position they were prior to the dispute. I do not find any sufficient ground to review the Judgment.

Disposition 14. The Respondent’s application dated 12. 07. 2021 lacks merit. It is dismissed with costs to the Appellant.

DATED AND DELIVERED AT NAIROBI THIS 17TH DAY OF NOVEMBER 2023. D. S. MAJANJAJUDGECourt Assistant: Mr M. OnyangoMr Kithinji instructed by Wamae and Allen Advocates for the Appellant.Ms Machio instructed by Lilian Amere Machio and Company Advocates for the Respondent.