[2023] KEHC 27586 (KLR)

Docwide Business Centre Kenya Limited v APA Insurance & another; Abdalla & 4 others (Interested Parties) (Civil Suit E008 of 2020) [2023] KEHC 27586 (KLR) (27 October 2023) (Ruling)

Neutral citation: [2023] KEHC 27586 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Suit E008 of 2020

F Wangari, J

October 27, 2023

Between

Docwide Business Centre Kenya Limited

Plaintiff

and

APA Insurance

1st Defendant

Jubilee Insurance

2nd Defendant

and

Bwana Abdi Abdalla

Interested Party

Interpel Investment Limited

Interested Party

Amos Munyoki

Interested Party

Harsam Guyo Gutara

Interested Party

James Ochieng Onyango

Interested Party

Ruling

1. This is a Ruling on an Application dated 20th September 2023 and filed by the Plaintiff seeking the review of the Ruling of this Court dated 16th June 2023. The Application is brought under the provisions of Order 45 of the Civil Procedure Rules and is materially based on the ground of an error apparent on the face of the Ruling.

2. The Applicant contends that the court made an error in the computation of time for the purpose of dismissal of the suit for want of prosecution in finding more than one year of inaction on the part of the Plaintiff when in fact the case was in court on 10th March 2022 and so the difference between the last court attendance and the date of the Application was less than six months.

3. The 1st Defendants and the 1st Interested Party filed their Replying Affidavits while the 2nd Defendant filed Grounds of Opposition. The stated that the Plaintiff had not met test for review to set aside the court orders.

Analysis and Determination 4. I have perused the Application and the response thereto. The single issue for determination is whether the Applicant has met the legal threshold for an order of review on account of the error apparent on the face if the record.

5. The Jurisdiction of this Court to grant review is well set out in the law. Section 80 of the Civil Procedure Act states 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”.

6. Section 63 (e) of the Civil Procedure Act states that:“In order to prevent the ends of justice from being defeated, the court may, if it is so prescribed make such other interlocutory orders as may appear to the court to be just and convenient

7. Order 45 Rule 1 of the Civil Procedure Rules provides for Review and it states as follows:“(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”

8. In reference to the reasoning of Kuloba J (as he then was) in Lakesteel Supplies vs. Dr. Badia and Anor Kisumu HCCC No. 191 of 1994 he stated as follows;“The exercise of review entails a judicial re-examination, that is to say, a reconsideration, and a second view or examination, and a consideration for purposes of correction of a decree or order on a former occasion. And one procures such examination and correction, alteration or reversal of a former position for any of the reasons set out above. The court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used in Order 44 rule 1, of the Civil Procedure Rules. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. It can only lie if one of the grounds is shown, one cannot elaborately go into evidence again and then reverse the decree or order as that would be acting without jurisdiction, and to be sitting in appeal. The object is not to enable a judge to rewrite a second judgement or ruling because the first one is wrong…On an application for review, the court is to see whether any evident error or omission needs correction or is otherwise a requisite for ends of justice. The power, which inheres in every court of plenary jurisdiction, is exercised to prevent miscarriage of justice or to correct grave and palpable errors. It is a discretionary power. In the present application it has not been said or even suggested that after the passing of the order sought to be reviewed, there is a discovery of new and important matter of evidence which, after the exercise of due diligence, was not within the applicant’s knowledge or could not be produced by him at the time when the ruling was made.”

9. It is the Respondents’ case is that the Applicant failed to annex the order to be reviewed and this is fatal to the Application. In the case of Wilson Saina v Joshua Cherutich T/a Chirutich Company Ltd (2003) eKLR, Visram J. (as he then was) while considering whether the order sought to be reviewed ought to be annexed stated as follows;“I respectively agree. In order to succeed on an application for review under Order XLIV of the Rules (presently Order 45), one must show that he is aggrieved by a decree or an order. This cannot be done without annexing the decree or order for the court to determine that point. I therefore, agree with my learned sister the Honourable Lady Justice Jessie Lesiit’s conclusion in Gatimu Farmers Ltd –vs- John Njoroge Ndungu Nakuru HCC NO.197/2001 that failure to annex the order or decree sought to be reviewed renders an application for review fatally defective. On this conclusion alone, I do not see the need to consider the Defendant’s application further as no useful purpose will be achieved thereby.”

10. Further, in the case of Belgo Holdings Ltd –vs- Robert Kotich Otach & Another (2009) eKLR, Justice Lesiit yet again considered an objection that the order sought to be reviewed had not been annexed to the application as in the present case and the Applicant had argued the order was within the court record and needed not to be attached to the application. The learned Judge in her ruling cited with approval the decision of Nyarangi, J (as he then was in the case of Bernard Githii on behalf of Mutathini Farmers Co. v Kihoto Farmers Co. Ltd HCCC Nairobi 32 of 1974 it was stated as follows;“There is no decree drawn up and attached to the application. It is not as clear as it ought to be what aggrieves the applicant. There has to be a decree or order in discovery of new and important matter or evidence……before an application may be made for a review of a judgment”.Lesiit, J for her part stated:-“I respectively agree with the views of Nyarangi, J. it is trite that the decree or order sought to be reviewed must be annexed or attached to the application in order for the Applicant to clearly show what has aggrieved it. Before making the application, there must have been a decree or an order drawn which aggrieved the Applicant and that is the order or decree that it ought to have annexed to this application in its support. Failure to annex that decree or order is fatal to the application”.

11. All these decisions point to the necessity of attaching the order or decree being reviewed. I am however, unable to agree with the Respondents that the Applicant did not annex the Order. A Judgment includes a Decree and mutatis mutandis, a Ruling includes an Order. Accordingly, the Applicant attached the Ruling of Court. This included the Order.

12. This court has added its voice to the debate whether or not failure to annex a formal decree or order to an application for review is fatal. In the case of Julius Mukami Kanyoko & 2 others –vs- Samuel Mukua Kamere & Another (2014) eKLR while considering the application of Order 45 to an application for review while no formal order was annexed the Court rendered itself as follows:-“The plain reading of the above provision (referring to order 45 Rule 1) is that an applicant for review ought to have annexed a formal extracted decree or Order in respect of which the review in sought. In essence judgment and/or ruling. Thus where an applicant fails to annex is sought to be reviewed such an application is defective. In the Defendant’s present application, the order that the Defendants sought to be reviewed was not annexed with the result that the Defendants application was fatally defective. I agree that a formal decree and/or order is a pre requisite before an applicant can bring himself/herself within the ambit of order 45 of the Civil Procedure Rules as relates to review of the decree and/or order”.

13. The Court of Appeal in Mahinda vs. Kenya Power & Lighting Co. Ltd [2005] 2 KLR 418 expressed itself as follows:“The Court has however, always refused invitations to review, vary or rescind its own decisions except so as to give effect to its intention at the time the decision was made for to depart from this would be a most dangerous course in that it would open the doors to all and sundry to challenge the correctness of the decisions of the Court on the basis of arguments thought of long after the judgement or decision was delivered or made.”

14. The Applicant’s contention is that 12 months required under Order 17 Rule 2(3) of the Civil Procedure Rules had not lapsed between the time the matter was in court last on 10th March 2022 and the filing of the Application. Order 17 Rule 2 (3) of the Civil Procedure Rules provides, inter alia:-1).“In any suit in which no application has been made or step taken by either party for one year, the court may give Notice in writing to the parties to show cause why the suit should not be dismissed and if cause is not shown to its satisfaction, may dismiss the suit.2).………3).any party to the suit may apply for its dismissal as provided in Sub-rule 1”.

15. I note that the matter was last in Court on 10th March 2022 and the Application whose ruling is subject to this review was filed on 30th August 2022. It was before the lapse of 1 year. In the case of Fenny Wakesho Mwakisha & another (suing on behalf of the Estate of Stephen Mwakisha-Deceased) v County Government of Kwale & 2 others [2021] eKLR the court stated as follows;“The conditions that an applicant should meet for such application to be allowed is the one year threshold of inactivity in the suit. From the record, the matter came to court on 28 November 2018 before Omollo J when it was announced that the original plaintiff is deceased. This application was filed on 15 May 2019 before lapse of one year. It is apparent that the applicant cannot thus sustain a cause for dismissal of this suit for want of prosecution for failing to meet the lapse of one year test. There is no need of saying more in so far as this application seeks the dismissal of the suit for want of prosecution for that prayer is clearly premature.

16. The Court noted that the Plaintiff took no action on the case for more than one year since the last appearance in Court on 10th March 2022. Indeed, it was in error. A year of inaction would lapse on 9th March 2023.

17. The other consideration in an application for review is whether the application was brought without an unreasonable delay. The Order was given on 16th June 2023 and the Applicant filed this Application on 20th September 2023 a period of about 3 months which I do not find inordinate delay.

18. In the case of In Re Estate of Simoto Omwenje Isaka (Deceased) [2020] eKLR Musyoka, J stated as follows;“With regard to delay in seeking review, the court, in Stephen Gathua Kimani vs. Nancy Wanjira Waruingi t/a Providence Auctioneers [2016] eKLR, stated:“One thing is clear in this application. The delay of one year has not been explained. Perhaps, it’s important to recall the last sentence of Order 45 Rule 1 (1) (b) which reads “… may apply for review of judgement to the court which passed the decree or made the order without unreasonable delay.”The logical question that follows is, was the present application made without unreasonable delay? Or is a delay of one year reasonable. The issue for determination is whether or not the applicant has unreasonably delayed in filing the present application. Under normal circumstances it should not take an applicant one year to file an application in court. It would require sufficient explanation to justify a delay of one year. To my mind this is a long period, and indeed an unreasonable delay.Such a long delay must be sufficiently explained.”

19. In the circumstances, I am inclined to allow the application. The upshot of the foregoing is that I allow the application in the following terms:i.The notice of motion dated September 20, 2023 has merits and is hereby allowed.iiCosts of the application to be in the cause.Orders accordingly.

DATED, SIGNED AND DELIVERED AT MOMBASA, THIS 27TH DAY OF OCTOBER 2023. F. WANGARIJUDGEIn the presence of;Kithome Advocate for the PlaintiffShikely Advocate for the 1st DefendantMugambi Advocate for the 2nd DefendantMaundu Advocate h/b for Achoka Advocate for 5th Interested PartyBarile, Court Assistant