[2022] KEHC 9779 (KLR)

Diamond Trust Kenya Limited v Ndunya (Suing as the legal representative of the Estate of the Late Jane Anyango Odiwuor) & another (Civil Appeal E035 of 2021) [2022] KEHC 9779 (KLR) (19 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9779 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Civil Appeal E035 of 2021

KW Kiarie, J

July 19, 2022

Between

Diamond Trust Kenya Limited

Appellant

and

Philip Odiwuor Ndunya (Suing as the legal representative of the Estate of the Late Jane Anyango Odiwuor)

1st Respondent

Africa Merchant Assurance Company Limited

2nd Respondent

Ruling

1. The appellant/applicant moved the court by way of Notice of Motion dated 1st February, 2022. It was brought under sections 1A, 1B & 3A of the Civil Procedure Act & Order 45 Rule 2, Order 51 Rule 1 of the Civil Procedure Rules. The applicant is seeking the following orders:a)That this application be certified as urgent and be heard ex partein the first instance. [Spent]b)Pending inter partes hearing of this application, that this court be pleased to stay the execution of the Garnishee order absolute dated December 23, 2020 issued against the appellant pursuant to the first respondent’s application dated June 16, 2020in Oyugis PMMC No. 119 of 2016. c)That there be a stay of execution of the Garnishee Order Absolute dated 23rd December, 2020 in Oyugis PMMC No. 119 of 2016. d)That this court be pleased to review/set aside the ruling datedJanuary 26, 2022and replace it with an order allowing the application dated May 18, 2021as prayed.e)That costs of this application be in the cause.

2. The application was premised on the following grounds:a)By a ruling delivered on January 26, 2022the court dismissed the appellant’s application dated May 18, 2021for stay pending appeal of the Garnishee Order Absolute dated December 23, 2021issued in Oyugis PMCCNo.119 of 2016 pursuant to the 1st Respondent’s Garnishee application dated June 16, 2020. b)The Bank’s application dated May 18, 2021was dismissed on the following grounds: The court held that the issues raised in the Bank’s application for stay pending appeal ought to have been raised in the initial garnishee proceedings and since the bank had not filed its record of appeal, the court was not in a position to know whether they were raised or not. As such, the Bank did not demonstrate that the trial court erred;

On May 28, 2020, parties filed a consent in the trial court where it was agreed as follows:

The total outstanding sum due is kshs.1,207,965/-;

The 1st Defendant is to settle kshs.300,000/- being the first installment on 28/5/2021;

The balance of kshs.907, 965/- to be offset in bi-weekly installments of kshs.300, 000/- after payment of the 1st installment.

Auctioneers’ fees are assessed at an all-inclusive sum of kshs.150,000/- payable on or before 28th May 2021;

In default of clause 2, 3 & 4 above, execution shall proceed against the garnishee for the total sum due.

That this consent be adopted as an order of this honorable court.

As a result of the above consent and part execution of the same, the bank’s application lacks merit.c)In the circumstances there is no stay of execution and the 1st respondent is at liberty to commence execution against the Bank pursuant to the garnishee Order Absolute dated December 23, 2020. d)The applicant is aggrieved with the foregoing ruling on the following reasons; The Bank was faulted for not filing a record of appeal despite the fact that the court was yet to issue directions on prosecution of the main appeal pursuant to order 42 Rule 13 of the Civil Procedures Rules, 2010.

The Bank’s application was inter alia, dismissed on grounds that it did not prove that the trial court erred, despite the fact that the merits of the Bank’s appeal is not an issue for consideration in an application for stay pending appeal, contrary to the provisions of Order 42 Rule 6 of the Civil Procedure Rules, 2010.

The Bank’s application dated 18th may 2021 was dismissed on the basis of a consent dated 28th May 2020 to which the Bank was not a party and whose terms did not bind the Bank, a fact the court failed to consider, hence an error on the fact of the record.e)As such, the appellant is extremely prejudiced as it risks being wrongfully condemned to settle the respondent’s decree. Additionally, its instant appeal shall be rendered nugatory for lack of substratum unless the ruling dated 26th January, 2022 is set aside.f)The 1st respondent shall not suffer any prejudice since there is still an enforceable judgment against the 2nd respondent.g)This application has been brought with sufficient promptitude and without any delay hence no prejudice will be suffered by the respondents.h)Other grounds to be adduced at the hearing thereof.

3. The respondent opposed the application on the following grounds:1. The application dated February 1, 2020should be struck out on the following grounds:a)The same discloses no reasonable cause of action in that:-i.The same application sought to be reviewed arises out of an appeal and Order 45 Rule 1(i) states that review is only available in case of a decree or order:- From which an appeal is allowed but from which no appeal has been preferred;

From which no appeal is allowed.ii.In the instant ruling an appeal is allowed but an appeal has been filed in the main suit where the cause of action arose.b)The prayer is vague and equivocal since the prayer is for review and or setting aside and each of the prayers operates in different circumstances and realms of law.c)The application is frivolous and vexatious and is otherwise an abuse process of the court in that:-a.The grounds for review or setting aside are almost the same raised earlier and rejected by the court.b.No proper reason has been shown to have the court review or set aside the orders it had made.c.It is evident that the purpose of the application is to delay the execution process whereas the whole garnishee order is affecting the garnishee because of his attempts to protect the judgment-debtor and his reluctance to disclose the truth to the court.2. The appellant is not in any way prejudiced nor is he being wrongfully condemned. The appeal arises out of a garnishee application under Order 23 and the appellant is a garnishee and is bound by the rules under the same order which the respondent followed to the later.[Sic]3. What is stated in paragraph 6 of the certificate of urgency that there exists some error apparent on the face of the record makes the application not to qualify to be made under Order 45 Rule 2 of the Civil Procedure Rules.4. The court and even the respondent fully considered the fact that the Garnishee, the Bank was not a signatory to the consent dated the 28th may 2020. The consent implies some sort of complicity between the judgment –debtor and the garnishee which should not be in this type of a case.

4. Order 45 Rule 2 provides:(1)An application for review of a decree or order of a court, upon some ground other than the discovery of such new and important matter or evidence as is referred to in rule 1, or the existence of a clerical or arithmetical mistake or error apparent on the face of the decree, shall be made only to the judge who passed the decree, or made the order sought to be reviewed.(2)If the judge who passed the decree or made the order is no longer attached to the court, the application may be heard by any other judge who is attached to that court at the time the application comes for hearing.3)If the judge who passed the decree or made the order is still attached to the court but is precluded by absence or other cause for a period of 3 months next after the application for review is lodged, the application may be heard by such other judge as the Chief Justice may designate.

5. This Order has been a subject of interpretations which have been very narrow. The rationale is obvious; to avoid the court that made the disputed decision from sitting on own appeal. In the case of Nyamongo and Nyamongo v Kogo [2001] EA 174, the Court of Appeal dismissed an application on the ground that there were no errors apparent on the face of the record and stated;An error 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 a real distinction between a mere erroneous decision and an error apparent on the face of the 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 a long drawn out 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 apparent on the face of the record even though another view was also possible. Mere error or wrong view is certainly no ground for a review although it may be for an appeal.And in the case of National Bankof Kenya Limited v Ndungu Njau [1997] eKLR, the Court of Appeal held that;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 a ground for review.

6. In order for the applicant to succeed, an error or omission on the face of the record must be pointed out. The same ought to be obvious without arguments. In the instant application, no such error or omission has been pointed out. The application is therefore dismissed with costs.

DELIVERED AND SIGNED AT HOMA BAY THIS 19TH DAY OF JULY, 2022KIARIE WAWERU KIARIEJUDGE