[2023] KEHC 25128 (KLR)

Credit Bank Limited v Khan & another (Civil Appeal 73 of 2023) [2023] KEHC 25128 (KLR) (1 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25128 (KLR)

Republic of Kenya

In the High Court at Kisii

Civil Appeal 73 of 2023

TA Odera, J

November 1, 2023

Between

Credit Bank Limited

Appellant

and

Vilayat Khan Sadar Khan

1st Respondent

Aziz Janmohamed Bhanji

2nd Respondent

Ruling

1. By a Notice of Motion dated 26th September 2023 and filed through the firm of Nyachae &Ashitiva Advocates and under Sections 1A, 1B, 3A and 95 of the Civil Procedure Act, order 50 rule 7, and order 51 rule 1 of the Civil Procedure Rules, 2010, the Applicant herein seeks the following orders: -1. Spent.2. That this Honourable Court be pleased to order stay of execution of the Judgment and Decree issued herein on 04. 07. 2023 pending the hearing and determination of this application.3. That this Honourable Court be pleased to enlarge the time and extend the 45 days period granted to the Appellant/Applicant to deposit the decretal amount herein in a joint account in the names of the parties’ advocates herein; files its record of appeal; and otherwise comply with the orders of the court issued herein on 11. 08. 2023, by a further fifteen (15) days, or such further period as the court shall determine.4. That the costs of the application be provided for.

2. The grounds on the face of the application are that Judgment was rendered in the lower court on 04. 07. 2023 and a Decree and a Certificate of Costs subsequently issued in favour of the 1st Respondent. The Appellant filed an application for stay of execution for decree was filed before the lower court on 11. 08. 2023. The Application was disposed of by way of a consent on the terms, inter alia, that the decretal amount, after taxation of costs, would be deposited in an agreeable interest-earning account in the joint names of the Parties’ Advocates; that the Record of Appeal would be filed within 45 days; and that in default of compliance, execution would issue. The Appellant and the Respondents allegedly took time in settling the amount of costs payable and an appropriate bank to open the joint bank account and in the meantime, the timelines agreed upon in the consent, expired. The cheques and the bank-account opening documents are now ready for execution. The Appellant had also not managed to obtain the typed proceedings despite requesting and paying for them on 27. 07. 2023. The Respondents had, however, declined to extend the said orders by consent and threatened to commence execution. The Appellant had an appeal with a prima facie chance of success and was desirable of prosecuting the same. There was therefore an imminent danger that the Respondents would move to execute and thereby suffer immense loss.

3. The Application was supported by an Affidavit sworn by Wainaina Francis Ngaruiya, the Head of the Legal and Recoveries Department of the Applicant. He deponed that a Judgment was entered in favour of the Respondents on 04. 07. 2023 in Kisii CMCC No. 142 of 2013. He deponed that an application for stay of execution was filed by the Appellant in the lower court and allowed by consent on the terms that, inter alia, that the decretal amount, after taxation of costs, would be deposited in an agreeable interest earning account in the joint names of the Parties’ Advocates; the record of appeal to be filed in 45 days; costs were to be agreed upon by the Parties’ Advocates, and in the absence of an agreement, the same would be taxed. The Respondent filed their bill of costs on 03. 08. 2023 and served on 08. 08. 2023. The sums to be deposited was only settled on 07. 09. 2023 vide a further consent of even date. He deponed that the Parties engaged on a mutually agreeable bank to open the account up to and until 25. 09. 2023, being the date of the expiry of the 45 days. The Appellant was unable to file the typed proceedings despite applying and paying for them on 27. 07. 2023. He deponed that upon signing and returning the account opening forms, the Respondents’ Advocates indicated that time had expired and would commence execution on 26. 09. 2023 unless issued with confirmation of the deposit by close of business 25. 09. 2023. He deponed that the Appellant’s firm was based in Nairobi and acting through the agency of the firm of Nyanchoga M.O. Advocates (based in Kisii). The Appellant’s Advocates were ready and willing to open the account and deposit the decretal sum immediately the extension would be granted. He deponed that the delay was, in the circumstances, not inordinate, inexcusable or occasioned by laches. He deponed that the Appellant had an arguable appeal with high chances of success that they were intent on prosecuting. He deponed that it would be in the interests of justice that the Application be allowed as the Appellant stands to suffer substantial loss and harm while the Respondents would suffer no injustice, prejudice or hardship.

4. The Respondents, through their Advocate Ouma Maurice Otieno, swore a Replying Affidavit sworn on 5th October 2023. He deponed that the Application was an abuse of court process to file an application on 26. 09. 2023 then serve it on 04. 10. 2023, and yet the matter was to come up on 05. 10. 2023. He deponed that the Appellant filed an Application dated 26. 07. 2023 in Kisii CMCC No. 142 of 2013 seeking stay of execution of the Decree pending the hearing and determination of the Appeal. The Application was allowed by consent of the parties on the following terms: that the Application was allowed on condition that the applicant deposit the entire decretal sum in a joint interest-earning account in the joint names of the Parties’ Advocates within 45 days of the order; that the Applicant would prepare, file and serve the Record of Appeal within 45 days of the order; and that in default of limbs (i) and (ii), execution would issue. He deponed that being a consent order, the same was binding with the force of a contract variable on certain terms. He deponed that the Appellant was not challenging the consent on account of mistake, error or fraud or misrepresentation of fact. The Appellant’s Advocates were served with a bill of costs on 08. 08. 2023 but only acted on 29. 08. 2023. They agreed on the costs on 30. 08. 2023 and a consent to that effect filed on 08. 09. 2023. The Appellant was not amenable to opening an account with I&M Bank as proposed on 30. 08. 2023. The Appellant’s Advocates only forwarded a bank resolution on 22. 09. 2023 which resolution did not comply with the Court’s order. The bank forms were only forwarded on 26. 09. 2023 on the same day that the 45 days lapsed. He deponed that as at 3. 15p.m. on 25. 09. 2023, the Appellant’s Advocates still had the cheques in their possession. He deponed that there was no proof that the Appellant’s Advocates followed up on the proceedings after paying for the same on 25. 07. 2023. He deponed that in the circumstances, the Appellant’s hands were unclean and underserving of the orders sought. He further deponed that the order sought to be extended was made in Kisii CMCC No. 142 of 2013 and the present application amounts to forum-shopping and therefore bad in law.

5. The Application was canvassed by way of written submissions.

6. The Appellant/Applicant filed its written submissions dated 9th October 2023. It submitted that the delay in obtaining the typed proceedings in the matter was a procedural technicality. The Appellant’s Counsel referred to the cases of Gitau v Kenya Methodist University (KEMU) (Petition 5 of 2020) [2021] KEHC 322 (KLR) and Anchor Limited v Sports Kenya. They submitted that it would be unfair to punish the applicant by denying it the orders sought as if the delay was their fault. The Appellant further submitted that the 45 days agreed upon was not enough time for 3 parties to agree upon a suitable bank and open a bank account. The Appellant’s Counsel referred to the case Njoroge v. Kimani (Civil Application Nai E049 of 2022) [2022] KECA 1188 (KLR) where the Court differentiated between excusable and non-excusable delays. They submitted that the delay in obtaining certified copies of the typed proceedings was a procedural technicality and therefore an excusable one. This court was told that the Appellant was ready to open a joint account and ready to deposit the cheques by the 45th day.

7. The Respondents filed their Written Submission dated 12th October 2023. The Respondents’ Advocates submitted that Judgment was entered in favour of the Respondents on 04. 07. 2023 in Kisii CMCC No. 142 of 2013. The Appellant then filed an application dated 26. 07. 2023 seeking stay of execution and the same was allowed by consent of the parties in the terms hereinabove postulated. The Respondents submitted that the Appellant had not annexed any copy of the order sought to be varied. They referred to Section 34 of the Civil Procedure Act and submitted that the Appellant ought to have filed the application with the Magistrate Court. They also submitted that this Court was not privy to the consent order and the consent order did not form part of this Court’s record and therefore abuse of court process. The Respondents’ Counsel further submitted that a consent order could only be varied on grounds that a contract would be varied. They cited the case of Flora N. Wasike v Destimo Wamboko [1988] eKLR, where the Court of Appeal held that “…A consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside, or if certain conditions remain to be fulfilled, which are not carried out.” They also cited the case of Paul Kiplangat Keter v Koech [2021] eKLR, where the Court held that a consent judgment can only be varied on the grounds that would vitiate a contract. A similar finding was made in Flora N. Wasike v Destimo Wamboko (1982-1988) 1KAR 625; Brooke Bond Liebig v Mallya 1975 E.A. 266; Hirani v Kassam [1952] 19 EACA 131; and Kenya Commercial Bank Ltd v Specialized Engineering Co. Ltd. [1982] KLR p. 485. They further submitted that stay in the matter was conditional, and that no effort was made and no special request was made to type, or request for court intervention and avail typed proceedings within the stipulated 45 days. They cited the case of Nicholas Kiptoo Arap Korir Salat v IEBC & 8 Others [2014] eKLR where the Supreme Court laid out the test for extending time. They submitted that failure to obtain the typed proceedings was not a mere technicality as held in George Muiruri Ruguru v Old Mutual Life Assurance [2017] eKLR where the Court held that Article 159(2) of the Constitution was not a panacea for all ills or meant to throw away the rules of procedure.

Determination 8. I have considered the Application herein, the Replying Affidavit and the Parties’ Submissions.

9. The background of the matter is rather brief. It would appear that Appellant filed an Application for stay of execution before the Trial Court and the same was disposed by way of a Consent entered on or around 11. 08. 2023. The Appellant was required to file its Record of Appeal within 45 days and to deposit the decretal amount in an agreeable joint interest-earning account in the names of both Parties’ Counsels. The Appellant was not able to meet those timelines alleging that both Parties took quite some time in agreeing on the decretal sum payable and that the Trial Court has also delayed in availing the typed proceedings to enable them prepare and file the Record of Appeal. It is that set of circumstances that is the subject of the present application.

Stay of Execution Pending Appeal 10. Prayer (2) of the Application seeks for stay of execution pending appeal. I note that annexed to the Respondent’s Replying Affidavit is a copy of the Application filed before the Trial Court, and dated 26. 07. 2023 in Kisii CMCC No. 142 of 2013. The said application seeks prayers for stay of execution pending appeal, among other orders. None of the Parties have availed a copy of the consent a entered into by the Parties herein in relation to the said Application. The Parties, however, appear to be in agreement on the terms of the said consent.

11. That being the case, then it means that issue of stay of execution pending appeal was determined by the Lower Court. The prayer as framed is therefore Res Judicata. Section 7 of the Civil Procedure Act, Cap. 21 Laws of Kenya provides that No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.

12. The issue of stay of execution was substantially and directly in issue in the application dated 26. 7.2023 in Kisii CMCC 142 of 2013, the parties are the same and the trial court was competent to issue those orders. See Order 42 Rule 6 of the Civil Procedure Rules, 2010.

13. Indeed, in the case of Kennedy Mokua Ongiri v John Nyasende Mosioma & Florence Nyamoita Nyasende [2022] eKLR, the Court referred to the definition of res judicata as per the Black’s Law Dictionary, 10th Edition as “An issued that has been definitely settled by judicial decision…the three essentials are (1) an earlier decision on the issue, (2) a final Judgment on the merits and (3) the involvement of same parties, or parties in privity with the original parties…”

14. The Court further cited the case of Njangu v Wambugu and Another Nairobi HCCC No. 2340 of 1991 (unreported) where Kuloba J. held “If parties were allowed to go on litigating forever over the same issue with the same opponent before courts of competent jurisdiction merely because he gives his case some cosmetic face lift on every occasion he comes to court, then I do not see the use of the doctrine of res judicata…”

15. The Court further referred to the case of Siri Ram Kaura v M.J.E. Morgan, CA 71/1960 [1961] EA 462 where the EACA stated as follows: -“…The law with regard to res judicata is that it is not the case, and it would be intolerable if it were the case, that a party who has been unsuccessful in litigation can be allowed to re-open that litigation merely by saying, that since the former litigation there is another fact going exactly in the same direction with the facts stated before, leading up the same relief which I asked for before, but it being in addition to the facts which I have mentioned, it ought now to be allowed to be the foundation of a new litigation, and I should be allowed to commence a new litigation merely upon the allegation of this additional fact. The only way in which that could possibly be admitted would be if the litigant were prepared to say, I will show that this is a fact which entirely changes, the aspect of the case, and I will show you further that it was not, and could not by reasonable diligence have ascertained by me before…The point is not whether the respondent was badly advised in bringing the first application prematurely; but whether he has since discovered a fact which entirely changes the aspect of the case and which could not have been discovered with reasonable diligence when he made his first application.It is therefore not permissible for parties to evade the application of res judicata by simply conjuring up parties or issues with a view to giving the case a different complexion from the one that was given in the former suit.”

16. The Trial Court having allowed the application for stay of execution pending appeal, notwithstanding that it was by consent of the Parties, I cannot entertain a similar application. There must be an end to litigation. The Appellant has not shown this Court what set of circumstances has arisen to warrant this Court’s intervention with the orders issued by the trial court. The Appellant cannot also claim that failure to open a joint interest-earning account or procuring the typed proceedings could be termed as the development of fresh circumstances that would warrant this Court entertain a similar application as was filed before the Trial Court.

17. In any event, even if I could entertain the same, I cannot allow it. The wording of the prayer is that the Appellant wishes for stay of execution pending the hearing and determination of the application. It would mean, therefore, that if I were to allow the application and grant the prayer for stay, the same would lapse the minute I would allow it. I am in agreement with the decision in Foundation Ministry Church- Kitui & Another v Mailu & 3 Others (Civil Case E002 of 2022) [2022] KEHC 397 (KLR) (6 May 2022) (Ruling) where the Court held:6. The substantive prayers (4, 5, 6, 7 and 8) as sought in this application are not tenable because they are anchored on the pendency of this application which means that they cease immediately this application is determined. This is because the said prayers are couched or premised on the determination of “the hearing and determination of this application” and not either the application dated 20. 04. 2022 or the main suit. The omission by the applicants in my considered view renders the said prayers (4, 5, 6, 7 & 8) defective and incompetent.The omission is not a mere technicality because there is no prayer in this application seeking preservatory orders or any other relief pending the hearing and determination of either the application dated 20. 04. 2022 and/or the entire suit. The provisions of Order 2 Rule 1 & 6 of the Civil Procedure Rules provide that a party is bound by his pleadings and under Order 51 of Civil Procedure Rule a party should clearly list the prayers sought and state in general terms the grounds upon which an application is premised. This is meant to accord the opposing party a fair chance to respond.

Review 18. In Prayer (3) of the Application, the Appellant seeks to enlarge the time and extend the 45 days granted to the Appellant by a further 15 days or such further period as the court shall determine.

19. Black’s Law Dictionary, 6th Ed. At page 1434 defines review as “1. Consideration, inspection, or re-examination of a subject or thing. 2. Plenary power to direct and instruct an agent or subordinate, including the right to remand, modify or vacate any action by the agent or subordinate, or to act directly in place of the agent or subordinate.

20. In essence, therefore, the Appellant is seeking for orders of review of orders issued by the Trial Court in Kisii CMCC No. 142 of 2013. At the outset, I wish to point out the fact that none of the Parties herein have attached a copy of the Decree or Order the Appellant is seeking to review. The said Decree or Order was not passed by this Court and I therefore do not have the privileged of appreciating the order I am called upon to review/ set aside/ vary.

21. It is vital for an applicant to annex a copy of the order or decree they wish reviewed. In Odunga’s Digest on Civil Case Law and Procedure, Volume 4, 2nd Edition, the author cites several decisions where the Courts have held that the decree or order in review must be annexed to the application. They include the following: -a.Wilson Saina v Joshua Cheritich t/a Cheritich and Company Limited, Nakuru High Court Civil Case No. 259 of 2001; [2001] LLR 8192 (HCK) (OS) (Visram, J. on 17 September 2003b.Peninah Wambui Mugo v Moses Njaramba Kamau, Nakuru High Court Civil Suit No. 238 of 2004 (Koome, J. on 7. 12. 2007)c.Mohamed Shafi v Miriam Juma & Others, Malindi High Court Civil Appeal No. 7 of 2003 (Ombija, J. on 05. 09. 2007) A6435d.Sheva Hotels Ltd. v Amina Hassan Yaa, Malindi High Court Civil Case No, 70 of 2006 (Ombija, J. on 18th July 2007) (A6436)e.Patrick Becker v Janet Nderitu, Malindi High Court Miscellaneous Civil Application No. 42 of 2007 (Ombija, J. on 27. 02. 2008) (A6437)f.Pius Maithya Lulu and Others v Bishop Mark Kubai and Others, Malindi high Court Civil Case No. 40 of 2004 ( Ombija, J, on 18. 6.2007) (A6438)

22. In addition, I am also precluded from reviewing the matter on account of the law. An application for review ought to be placed before the court that passed the order or decree in issue.

23. Section 80 of the Civil Procedure Act provides as follows: -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; orb.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. (Emphasis mine)

24Order 45 Rule 1 provides:(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; orb.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 of order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay. (Emphasis mine)

25. In Mulla, The Code of Civil Procedure, 18th Ed, at Pg. 3679, the Author writes:“One judge of a High Court cannot set aside an order made by another judge of that court even though the order be wrong. The remedy lies in review on the grounds mentioned in this rule (Basanta Kumar v. Kusum Kumari (1917) 44 Cal 28: 38 IC 584. ) It is true that the general principle, for very good reason, is that a review must always be heard by the same judge or by the same court but there are situations in which this is not possible particularly where the same judicial officer is not available and in these situations it is a sell-settled law that any other court of concurrent jurisdiction can hear the case. (Savithramma v. H. Gurappa Reddy, AIR 1996 Kant 99) The review would only be heard by another judicial officer if the judge passing the order is not available due to superannuation (Santi Kumar Jani v. Anil Kumar Datta, AIR 1996 Cal 4)

26. On page 3684, the author further writes: “…a review amounts to a reconsideration of its own decision by the very same court.”

27. Therefore, the present application ought to have been presented before the Trial Court for consideration, or if the said Court is not available for whichever reason, to any other court of concurrent jurisdiction. Whilst the Appellant has presented grounds worth considering, this court lacks jurisdiction to review orders made by another court orders.

28. On whether this court has can review a consent entered into by parties, it is trite law that a consent can only be set aside on the same grounds of setting aside a contract as was rightly submitted by respondent i.e fraud, misrepresentation, undue influence, coercion etc as was held in the cited case of Brooke Bond Liebig Ltd v Mallya [1975] EA 266 to wit: -A court cannot interfere with a consent judgment except in such circumstances as would afford good ground for varying or rescinding a contract between the parties.”This court lacks jurisdiction to review orders made by another court orders. The court lacks Jurisdiction to set aside a consent entered herein as it not does meet the threshold for setting aside a consent.

29. In the end, the Appellant’s Application dated 26. 09. 2023 lacks merit and I therefore proceed to dismiss it. Costs of the Application are awarded to the Respondents.

DATED, DELIVERED AND SIGNED AT KISII THIS 1ST DAY OF NOVEMBER 2023. T.A ODERAJUDGEIn the presence of:Mr. Angwenyi for the Appellants/ ApplicantsMr. O.M Otieno for the RespondentsOigo: Court Assistant