[2022] KEHC 14518 (KLR)

East Africa Chains Limited v P.C. World Limited & another (Civil Appeal 296 of 2013) [2022] KEHC 14518 (KLR) (Civ) (13 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14518 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 296 of 2013

JN Mulwa, J

October 13, 2022

Between

East Africa Chains Limited

Applicant

and

P.C. World Limited

1st Respondent

Aggrey Ademah

2nd Respondent

(Hon. Justice Charles Kariuki delivered Civil Appeal 296 of 2013 )

Ruling

1. Before the court is a Notice of Motion dated January 23, 2020 brought under Order 51(1) & Order 45 of the Civil Procedure Rules and Sections 1, 1A, 1B, 3 & 3A of Civil Procedure Act. The Applicant seeks the following orders:1. Spent.2. Spent.3. That this Honourable Court be pleased to review, vacate or set aside its judgment delivered on December 20, 2019. 4.That this honourable court be pleased to grant any further or other orders as may be appropriate in the best interests of the appellant/applicant herein.5. That the costs of this application be borne by the Respondent.1. The application is supported by the affidavit of Elizabeth Gicheru, an Advocate from the firm of Judy Thongori & Company Advocates who have the conduct of this matter on behalf of the Appellant/ Applicant.

2. The application is based on the grounds that on December 20, 2019, the Hon. Justice Charles Kariuki delivered a judgment herein in which the Appellant's Appeal was dismissed with costs to the 1st Respondent. The Applicant avers that there is an error apparent on the face of judgment, at page 3 thereof, where the learned judge observed that parties had failed to file their Record of Appeal and Written Submissions yet the same had been duly filed. It is the Applicant’s contention it's Written Submissions raise genuine issues which the Court did not have a chance to review and consider. Lastly, the Applicant states that there has been no undue delay in filing this application.

3. In opposition, the 1st Respondent filed a Replying Affidavit sworn on February 17, 2020 by Bosire Kennedy Mark, an advocate from the firm of Mang'erere Bosire & Associates Advocates who have the conduct of this matter on behalf of the 1st Respondent. He averred that the Applicant has not satisfied the grounds for review. He stated that the Applicant failed to comply with the court's directions on the timelines for filing and exchanging written submissions and that is why the court proceeded to deliver the judgment without considering the same.

4. In rebuttal, the Appellant filed a further Affidavit sworn by its Managing Director, Mark John Tilburywho refuted the allegations that the Appellant failed to comply with the court’s directions on filing of submissions. He averred that the Appellant’s submissions were prepared but there was great difficulty in filing the same as the Court file went missing at the registry and it was later discovered that Justice Charles Kariuki had taken it with him to Garissa Law Court where he was stationed at the time. He stated that their advocates liaised with the Deputy Registrar and were advised to file the submissions for onward transmission to Justice Kariuki who was visiting the Nairobi station on November 24, 2019 for other official duties. They were therefore surprised to discover that the Judge never received their submissions as promised.

5. The application was canvassed by way of written submissions. However, only the 1st Respondent put in its submissions.

6. It maintained that the Applicant has not satisfied any of the grounds for review under Order 45 Rule 1 of the Civil Procedure Rules. The allegation that the file was missing is an afterthought as the same is not supported by any evidence or an affidavit by the purported court clerk who was following the matter. Be it as it may, it is important to state that the appellants submissions are dated November 18, 2019 which is over one month after the expiry of the 14 days as captured in the applicant's notice of motion. Further, the 1st Respondent submitted that the Applicant’s contention that Justice Charles Kariuki overlooked the record of appeal in arriving at his judgment is not accurate as there would be no appeal without the record and in any event, the impugned judgment is founded on the record of appeal. In the 1st Respondent’s view, the Applicant was merely dissatisfied with the judgment and the only remedy that was available to it was to appeal which it failed to do.

7. The only issue for determination is whether the Applicant has made out a case for review of the judgment delivered on December 20, 2019.

8. Section 80 of the Civil Procedure Act-(CPA) donates to courts the power to review their own decisions. It stipulates as follows:“80. 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 judgement to the court, which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”

10. Order 45 Rule 1 of the Civil Procedure Rules,2010 –(CPR) provides for the grounds upon which review may be granted 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.”

11. From the foregoing provisions, it is clear that a review may be granted by the court if there is a discovery of new and important matter or evidence; if there is a mistake or error apparent on the face of the record; or for any other sufficient reason, provided that the application is made without unreasonable delay.

12. In the instant case, the Appellant claims that there is an apparent error at page 3 of the judgment delivered herein on December 20, 2019. What constitutes an error apparent on the face of the record was discussed in Kanyabwera v Tumwebaze [2005] 2 EA 86 where the court stated that:“In order that an error may be a ground for review, it must be one apparent on the face of the record, i.e. an evident error which does not require any extraneous matter to show its correctness. It must be an error so manifest and clear, that no court would permit such an error to remain on the record. The “error” may be one of fact, but it is not limited to matters of fact and includes errors of law.”

13. In the case of Nyamogo and Nyamogo v Kogo [2001] EA 17, the Court of Appeal stated that:“…an error apparent 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 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 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.”

14. I have looked at page 3 of the impugned judgment. At paragraph 7 thereof, the learned judge stated that the parties were directed to file the record of appeal and submissions but none complied. Was this an error apparent on the face of the record? Answering this question requires a perusal of the entire court record which I have done. From the proceedings, it is clear that on July 12, 2019, Sergon J. directed the parties herein to file and exchange their respective written sub missions on the appeal within 15 days each. When the matter was mentioned on August 23, 2019 for purposes of confirming compliance, none of the parties had filed their submissions and the Appellant had not even served the Respondent with the Record of Appeal. On September 10, 2019, the matter was mentioned once again before Justice Kariuki and parties were granted further leave of 14 days each to file and exchange their written submissions and the judgment date was fixed for December 20, 2019.

15. The Appellant has annexed a copy of its written submissions filed on November 22, 2019 which was long after the time within which it was directed to file its submissions. It alleged that the delay was occasioned by what it states to have been unavailability of the court file. However, nothing was presented to the court to show the efforts made in tracing the file or liaising with the Deputy Registrar so as to ensure compliance. Further, the Appellant’s assertion that its submissions raise genuine issues is not a basis for review because submissions are neither pleadings nor evidence. In Daniel Toroitich Arap Moi & Another v Mwangi Stephen Murithi & Another[2014] e KLR, the Court of Appeal held thus:“Submissions cannot take place of evidence. The Respondent had failed to prove his claim by evidence what appeared in submissions could not come to his aid. Submissions are generally parties “marketing language”.”

16. Additionally, it is clear from the said judgment that Justice Kariuki determined the appeal on the basis of the Memorandum of Appeal and the Record of Appeal. As such, the statement by the learned judge at paragraph 7 on page 3 of the impugned judgment cannot possibly be understood to mean that no record of appeal was filed.

17. For the foregoing, I find that there was no error apparent on the face of the judgment delivered on December 20, 2019 to warrant a review of the same. Accordingly, the Appellant’s application dated January 23, 2020 is hereby dismissed with costs to the Respondents.

DATED, DELIVERED AND SIGNED IN NAIROBI THIS 13TH DAY OF OCTOBER, 2022. J. N. MULWAJUDGE