[2022] KEHC 205 (KLR)

Global Impex Machinery Limited v Vlan Construction Limited; Rama Homes Limited (Third party) (Civil Case E193 of 2019) [2022] KEHC 205 (KLR) (Commercial and Tax) (17 March 2022) (Ruling)

Neutral citation: [2022] KEHC 205 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Civil Case E193 of 2019

WA Okwany, J

March 17, 2022

Between

Global Impex Machinery Limited

Decree holder

and

Vlan Construction Limited

Debtor

and

Rama Homes Limited

Third party

Ruling

1. The Respondent/Decree Holder herein filed the plaint dated 24th June 2019 seeking the payment of Kshs. 27,714,503. 02 being the amount due and owing from the Applicant/Judgement Debtor as at 20th February 2019. The Respondent also sought interest at Court rates together with costs.

2. The Judgement debtor entered appearance on 9th July 2019 after which the Decree Holder applied for summary judgment against the defendant. The Judgement Debtor opposed the application through a Replying Affidavit and notice of Preliminary Objection. The Judgement Debtor later withdrew the Notice of Preliminary Objection after which it sought and obtained leave to file a further Replying Affidavit to the Application.

3. The Judgement Debtor did not file the further replying Affidavit and instead filed a Statement of Defence on 6th December 2019.

4. Through a ruling delivered on 14th May 2020, this court found that the defence raised no triable issues and allowed the Application for summary judgment upon finding that the Decree Holder's case is plain, obvious and merited.

5. Aggrieved by the said ruling the Judgement Debtor filed the application dated 21st May 2020 seeking, inter alia, a review of the Ruling delivered on 14th May 2020. After considering the said application, the court made the following orders: -a.The firm of Kimani Michuki & Co. Advocates is hereby allowed to come on record for the defendant.b.The judgment entered on 14th May 2020 is hereby set aside and the plaintiff is restrained from executing the said judgment but on condition that the defendant deposits, as security, the full decretal sum in an interest earning account to be held in the joint names of counsel for the parties herein in a financial institution of repute within 45 days from the date of this ruling.c.That in the event of failure to comply with the conditions for stay and setting aside stated in ii) hereinabove, the orders of stay and setting aside shall stand vacated and the summary judgment reinstated forthwith, in which case, the plaintiff will be at liberty to proceed with the execution proceedings.d.The defendant is granted leave to file its defence, affidavits and any other relevant documents in response to the plaintiff's claim within 14 days from the date of this ruling.e.I grant the costs of the application to the plaintiff.

6. The Judgment Debtor was yet again aggrieved by the said Ruling and filed the Application dated 22nd April 2021 seeking the following prayers;a)Spent.b)That this Honourable Court be pleased to review its Ruling delivered on 11th March 2021, directing that the defendant deposits, as security, the full decretal sum in an interest earning account to be held in the joint names of counsel for the parties herein in a financial institution of repute within 45 days from the date of the ruling for sufficient reason,c)That leave be granted to the Defendant to issue Third Party Notice to Rama Homes Limited.d)That the costs of this application be awarded to the Defendant/Applicant.

7. The Application is premised on the grounds set out on face of the application, the supporting affidavit of Singh Sondh who states that the impugned ruling of 11th March 2021 was delivered in the absence of its Counsel who inadvertently did not diarize the ruling date after the Counsel who previously handled the matter left the law firm. The applicant further states that it only learnt of the ruling much later and that its attempts to secure funds from various financiers so as to comply with the Court's order to deposit the decretal sum in a joint interest earning account did not bear any fruits.

8. The applicants contended that the downward trend in the Kenyan economy coupled with acts from the intended Third Party have made it impossible for it to secure funds in order to comply with the orders issued in the impugned ruling.

9. It was the applicant’s case that it has furnished sufficient reasons to justify the review of the ruling of 11th March, 2021 requiring a deposit of Kshs. 27,714,503. 02.

10. The Decree Holder opposed the Application through a Notice of Preliminary Objection dated 26th April 2021 wherein it states that the Application is incompetent, fatally defective and a non-starter having been filed in total disregard of the Law.

11. Parties canvassed the Preliminary Objection by way of written submissions which I have considered.

12. What constitutes a preliminary objection was discussed in the oft cited case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696 where it was held that: -“So far as I'm aware, a preliminary objection consists of a point of law which has been pleaded, or which arises clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are objections to the jurisdiction 01 the Court or a plea of limitation, or a submission that the suit or parties are bound by the contract giving rise to the suit to refer the dispute to arbitration. "

13. Order 45 Rule 6 of the Civil Procedure Rules stipulates as follows: -1(1) of the said Order 45 states that:"Any party 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 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. "

14. Order 45 Rule 6 of the Civil Procedure Rules, on the other hand, provides that: -“6. No application to review an order made on an application for a review of a Decree or Order passed or made on a review shall be entertained."

15. The Decree Holder argued that the objective of the above rule is to enable a party aggrieved by a decree or order of the court to apply to the same court to re-examine its own decision where an appeal has not been preferred against the order. The Decree Holder cited the decision in Salama Mahmoud Saad vs Kikas Investment Limited & Another [2014] eKLRwherein Gikonyo J. held that: -The jurisdiction of the Court under Order 45 of the Civil Procedure Rules is restricted to the grounds set out in the said Order which are; the discovery of new and important matter of evidence which, after 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.

16. The Decree Holder maintained that the Preliminary Objection is merited as the earlier motion dated 21st May 2020 sought orders for review under Order 45 of the Civil Procedure Rules which orders were allowed. According to the Decree Holder, the Judgment Debtor cannot file a second application for review. It was submitted that the instant application offends the clear provisions of Order 45 Rule 6 of the Civil Procedure Rules.

17. The Decree Holder submitted that the instant application amounts to an appeal to the same Court on a decision it has already reviewed thus falling afoul the provisions of Order 45 Rule 6 of the Civil Procedure Rules. For this argument, the Decree Holder cited the decision in Equity Bank Limited vs Neptune CreditManagement Limited [2012] eKLR where Mabeya J. held that:-“It is good public policy that once a court has been called upon to look at its own decision by way of review, it will be wrong to call on that court to once again reconsider that decision. That will amount to nothing but mounting an appeal to the same court on a decision it has already reviewed. Accordingly. I am of the view that the Defendant's application fell afoul of Rule 6 of Order 45 of the Civil Procedure Rules.”

18. On its part, the judgement Debtor contended that the Decree Holder’s argument that this is a second application for review should not be entertained as it is misleading and intended to defeat the ends of justice. It was submitted that the Orders of 11th March 2021 were to set aside the Summary Judgement.

19. My finding is that looking at the prayers sought by the Applicant in the earlier application and the orders issued in the impugned ruling, one cannot say that there was an initial application for review so as to make the instant application the second application for review. I note that even though the earlier application was expressed to have been brought under Order 45 of the Civil Procedure Rules, the application was to set aside the summary judgement. It is clear that the instant application is the first application for review as the impugned orders were to set aside the summary judgment on condition that that the applicant deposits the full decretal sum as security.

20. I therefore find that the Preliminary objection is not merited and I therefore dismiss it with orders that costs shall abide the outcome of the application.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 17THDAY OF MARCH 2022. W. A. OKWANYJUDGEIn the presence of:Ms Nyaga for Ngatia for defendant.Mr. Maranga and Mr. Mogeni for Decree Holder/RespondentsCourt Assistant: Sylvia