[2017] KEHC 7128 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MALINDI

CIVIL APPEAL NO. 23 OF 2014

CHACHA MWITA MOSENDA ………………………. APPELLANT

VERSUS

BAYA TSUMA BAYA …………………...………. 1ST RESPONDENT

MANISH AMICHAND SHAH ……..……...……. 2ND RESPONDENT

DINISH SHAH ………………………….……..…. 3RD RESPONDENT

(Being an Appeal from the Ruling of A.M. Obura, Principal Magistrate, delivered on 6th August, 2014 in Kilifi SRMCC No. 124 of 2003)

JUDGEMENT

This is an appeal against the ruling and order dated 6th August, 2014 praying for its review and/or setting aside. The grounds of appeal are: -

1. That the Learned Magistrate erred in law in dismissing the Appellants application for review inspite of the fact that the application was unassailable.

2. That the Learned Magistrate's erred in law in failing to find that there was an error apparent on the face of the record thus a compelling reason that warranted the review of the judgement impugned.

3. That the Learned Magistrate's erred in law in failing to find that the pronouncement against the Appellant who was no longer a party to the suit was plainly erroneous and constituted a manifest error on the face of the record thus amenable to review.

4. That the learned magistrate misdirected herself on the ambit and application of the functus officio doctrine vis-a'-vis the court's power on review.

5. That the Learned Magistrate's exercise of discretion in her subject ruling was this manifestly erroneous in principle and legally untenable.

A judgment dated 16th March, 2006 was pronounced and a finding made against the 1st defendant in the Magistrates' Court in Kilifi Civil Case No.124 of 2003. This was a running down case involving two vehicles, one on which the 1st respondent was a passenger, the 1st Respondent was the plaintiff. Judgement was entered against the appellant only after the trial court found the appellant liable. The other defendants whose vehicle the appellant was travelling in were found not liable.

A subsequent ruling dated 6th August, 2014 arose after appellant filed a notice of motion dated 23rd June, 2014. He was seeking orders for temporary stay of execution of the decree of the court and that of a declaratory suit, Kilifi SRMC No.284 of 2006, filed by the plaintiff in a bid to enforce the judgment against the appellant's insurer. The ultimate order sought was for review of the judgment due to an error apparent on the face of record and in particular that the appellant was not a party to the suit. The appellant's supporting affidavit indicates that the plaintiff had amended his plaint whose effect was to strike out the appellant's name yet the court made a finding against him.

The appeal is in relation to a finding on that application for review by the appellant. The Learned Magistrate dismissed the application on three grounds. The first was that it was not clear if the amended plaint was brought to the attention of the trial court and in any case the trial court had made a clear pronouncement that the driver of the pickup registration no. KYT 504 was fully to blame. This was in reference to the appellant. Secondly, there was undue delay in filing the application for review and finally that the court was functus officio.

In this appeal the parties presented their written arguments. The appellant asserted that notwithstanding the fact that an amended plaint filed on 23rd June, 2003 struck out his name before the suit was heard and determined, the trial court found against him and as such presented an error. It is argued that though the contested decision was fairly old, this court has unfettered jurisdiction to review the said decision so as to avoid a travesty of justice. The appellant emphasised that a party must be heard before judgment is pronounced against them and the appellant was neither heard nor was he a party at the time. He submitted that Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules endowed the Magistrate's court with jurisdiction to review its own decision and to buttress that point he relied on the decision of the Court of Appeal of Tanzania in TRANSPORT EQUIPMENT LIMITED V VALAMBHIA [1994] 1 LRC 114.

The 1st Respondent, the plaintiff in Kilifi SMRC No. 124 of 2003, opposed the appeal. He aligns himself wholly with the ruling in question and relies upon it for purposes of the appeal. In his submissions, he urged that the appeal be dismissed with costs as it is an abuse of court process and lacks merits. He emphasised that the ruling in question is legally sound and was reached after a proper analysis of facts in issue raised in the appellant's notice of motion.

The issue to be determined is whether or not the Magistrate's court had jurisdiction to review the judgement?

The power to review is mandated by Section 80of the Civil Procedure Act which provides that: -

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.

The complimentary procedural rule on this is Order 45 of the Civil Procedure Rules. Its Rule 1 provides that: -

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 a review of judgment to the court which passed the decree or made the order without unreasonable delay. (own emphasis)

The appellant had approached the court for review on account of an alleged mistake or error apparent on the face of the record. The Magistrate who determined the application for review was a different Magistrate from the one who heard and determined the matter as provided for by Order 45 Rule (2)(2) of the Civil Procedure Rules. The alleged mistake or error apparent on the face of the record in particular was that the plaintiff having amended the plaint removed the appellant from the suit and the court ought not to have made a reference to him in the judgment. I agree on a larger portion with this point as an unshakable principle of natural justice one must not be condemned unheard. I do however differ slightly with the appellant to which I shall offer my explanation. A copy of the amended plaint annexed to the application for review indicates that it was filed in year 2003. Before the amendment, the plaint indicated that the appellant was the 1st defendant. However, after the amendment his name and all references to him were struck through and crossed with a straight line as is in the way of deleting an unwanted word, phrase or paragraph. The repealed Civil Procedure Rules applicable then provided under Order VIA Rule 7 (2) that: -

2. All amendments shall be shown by striking out in red ink all deleted words, but in such a manner as to leave them legible, and by underlining in red ink all added words.

The reasonable conclusion that can be reached is that the plaintiff did not intend to pursue a claim as against the appellant who was formerly the 1st defendant and the effect of the amendment was that the appellant used to be a party to the suit. It is however evident from the judgment that the court held the view, albeit erroneous, that there were three and not two defendants on board the suit when it attached liability on the first defendant. The trial Magistrate, with respect, made an erroneous finding when it held that: -

“From the conclusion, it is for the court to determine whether the plaintiff was a passenger on the matatu, whether the pickup was negligently and crashed unto the matatu causing him injuries........It is apparent from the police abstract that he was passenger in the matatu owned by the 2nd defendant and driven by the 3rd defendant. ........ According to his sketch he said it is the pickup that crossed to the lane of the matatu. The first defendant's driver was thus at fault....Liability will be found against the first defendant in full........Claim against the 2nd and 3rd defendant dismissed with costs.” (sic) (emphasis supplied).

The Magistrate hearing the application for review held that “.it is not clear whether the amended plaint was ever brought to the court's attention or if it was in the court file by the time Judgment was entered. The trial magistrate cannot be faulted for referring to the 1st Defendant.”. The Learned Magistrate was in doubt about the amended plaint though earlier on the court had acknowledged that the effect of the amendment was to remove the appellant from the suit when it found, “...an amended plaint was filed wherein the 1st Defendant's name was struck out. The effect of this is that there were now only two Defendants: MANISH AMICHAND SHAH & DINISH SHAH. They appear as the 2nd and 3rd Defendant in the original plaint. In the amended Plaint, they are now the 1st and 2nd Defendant.”

The view of the court on the status of the amended plaint as at the time of judgment is nothing more than conjecture for it is not based on facts on the record and it ought not to have been the basis for finding that there was no error apparent on the record. The amended plaint was filed almost a year before the hearing and determination of the suit, the plaintiff himself, its author, did not at the time of the application for review and to my knowledge to date disputed its veracity and existence. The apparent error on record therefore stood out.

I had stated that I disagreed with the appellant to a point and in particular I differ on his view on being mentioned in the judgment by the trial court. It was the duty of the trial court to make a finding on facts on negligence and it implicated the driver of the pickup. To this extent, the pickup and its driver had to be mentioned. I am in agreement with the disputed ruling to the extent where it held that, “Even if the court were to review the Judgment, ...It would not change the important finding that the driver of the Pickup registration no. KYT 504 was to blame.” I thereafter respectfully depart from the finding of the court on its ruling on the application for review for the reasons below.

As aforementioned, the effect of the amendment was to make the appellant a stranger to the suit. The treatise Mulla, The Code of Civil Procedure 18th ed. p.253 indicates that: -

Parties are persons whose names are on record at the time of the decision, and a party may be a person who has intervened in the suit. A party who withdraws or whose name is struck off, ceases to be a party.(own emphasis)

Based on the above, the trial Magistrate, save as to find that the driver of the pickup was to blame, could not refer to the appellant as the 1st defendant as if he existed at the time of the decision. The appellant as a result was condemned unheard. This was the glaring error apparent on the face of the record. The court upon hearing the application for review would have reviewed the judgment so as to regularise it to reflect the amended plaint. It was the plaintiff's case, the amendment reflected his sentiments and desire to pursue his claim not against the appellant or his driver, if any, but the remaining two defendants, the court was obligated to follow through as a party is bound by their pleadings.

The second reason for disallowing the application was that there was undue delay in presenting the application for review. The judgement had been delivered in 2006 and the application for review filed in 2014. The court found that the appellant did not offer a reasonable explanation for the delay. It is the correct position that the appellant did not offer any explanation for the unreasonably long delay. The appellant annexed in his supporting affidavit a garnishee application to demonstrate that the 1st respondent was seeking to execute against his insurer. The garnishee application had a copy of a decree dated December, 2006 emanating from a declaratory suit filed by the plaintiff against the appellant’s insurer. It is unexplained why there was a such a long delay in filing the application for review and would in ordinary circumstances have been a proper ground for denying an application for review. However, the judgment as it stood had an error that presented an absurdity and in a way embarrassed the cause of justice. Hence, a review would have perfected the judgement, notwithstanding the unexplained and unreasonable delay.

The Learned magistrate further declined to allow the application on the basis of the doctrine of functus officio. This doctrine is one of the expressions is law on the principle of finality. The Black's Law Dictionary, Ninth Edition defines the describes functus officio as: -

“[having performed his or her office]” (of an officer or official body) without further authority or legal competence because the duties and functions of the original commission have been fully accomplished.”

The Court of Appeal in TELKOM KENYA LIMITED V JOHN OCHANDA (SUING ON HIS OWN BEHALF AND ON BEHALF OF 996 FORMER EMPLOYEES OF TELKOM KENYA LIMITED) [2014] EKLR held that: -

“Functus officiois an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon.”

The Court of Appeal followed the Supreme Court decision in RAILA ODINGA & 2 OTHERS V INDEPENDENT ELECTORAL & BOUNDARIES COMMISSION & 3 OTHERS [2013] EKLR where the Supreme Court cited with approval an excerpt from an article by Daniel Malan Pretorius entitled, “The Origins of the Functus Officio Doctrine, with Special Reference to its Application in Administrative Law”(2005) 122 SALJ 832 which reads: -

...“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision making powers may, as a general rule, exercise those powers only once in relation to the same matter...The [principle] is that once such a decision has been given, it is (subject to any right of appeal to superior body or functionary) final and conclusive. Such a decision cannot be reviewed or varied by the decision maker.”

It is this decision in TELKOM KENYA LIMITED(supra ) and that of RAILA ODINGA V IEBC(supra ) on the doctrine of functus officio that guided and bound the Learned Magistrate in reaching the decision that the court was functus and could therefore not review the judgement. The judgement of the lower court as rendered however varied the circumstances to which the doctrine applies and called for an application of its exceptions.

The rule of functus officio has exceptions. Section 99 of the Civil Procedure Actestablishes the slip rule it provides that: -

“Clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the court either of its own motion or on the application of any of the parties.”

The Civil Procedure Rules provides under Order 21 Rule 3 (3) that: -

“A judgment once signed shall not afterwards be altered or added to save as provided by section 99 of the Act or on review.”

The law allows for the correction of the judgement but not its merits. Hence the Learned Magistrate was correct as quoted above that a review would not change the finding of the court that the driver of the pickup was found to blame.

Case law supports the place for exceptions and this includes that of the Court of Appeal in TELKOM KENYA LIMITED CASE(supra) which followed with approval the decision in the Canadian case of CHANDLER VS ALBERTA ASSOCIATION OF ARCHITECTS[1989] 2 S.C.R. 848, where in explaining the origins of the rule offunctus officio it was held in part that: -

“...The rule applied only after the formal judgment had been drawn up, issued and entered, and was subject to two exceptions:

1. Where there had been a slip in drawing it up, and,

2. Where there was an error in expressing the manifest intention of the court.

The Court of appeal in TELKOM KENYA LIMITED CASE(supra) also held that: -

“The doctrine is not to be understood to bar any engagement by a court with a case that it has already decided or pronounced itself on. What it does bar is a merit-based decisional re-engagement with the case once final judgment has been entered and a decree thereon issued. There do therefore exist certain exceptions...”

The application for review by the applicant pointed to the fact that his name had been struck out by the amendment to the plaint and the court ought not to have attached liability to a 1st defendant who did not exist and dismissed the case of a 2nd and 3rd Defendant whilst the suit only had two defendants, which did not include the appellant, at the time of the hearing and decision making. The court due to these circumstances was not functus officio and was not barred from reviewing the judgment.

I would allow the appeal. The appellant to bear the costs of the appeal for reasons that the declaratory suit was way back in 2006 when his insured was sued. The insured would have, under its subrogation rights, engaged the court for review at that period in line with the overriding objective of expeditious and affordable disposal of civil suits as per Section 1A (1) of the Civil Procedure Act as its duty lay to assist the court in reaching this objective as provided for under Subsection (3) in particular that: -

(3) A party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court.

This appeal is allowed with costs to the respondent.

Dated, signed and delivered in Malindi this 13th day of March, 2017.

S.J. CHITEMBWE

JUDGE