[2021] KEELC 4467 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MOMBASA

ELC. NO.347 OF 2015

GRAIN BULK HANDLERS LIMITED..................................PLAINTIFF

AND

JUJA COFFEE EXPORTERS LIMITED............................DEFENDANT

RULING

1. The application for determination is the Notice of Motion dated 25th February, 2020 by the Plaintiff/Applicant seeking to refer the subject file hereof to Honourable Lady Justice A. Omollo for her considered interpretation of the ruling dated 22nd September, 2017 as concerns its total effect on the instant proceedings. The application is supported by the affidavit of Joseph Mwella Advocate sworn on 20th February, 2020. The application is premised on the following grounds:

a) That vide her ruling delivered on 22nd day of September, 2017, at Mombasa, the Honourable Lady Justice A. Omollo allowed the defendant’s preliminary objection dated 23rd December, 2015.

b) That the preliminary objection aforesaid sought to have the case herein dismissed in its entirety with costs for being lodged contrary to the provisions of Section 38 (i) of the Land Act and Section 3 (2) of the Law of Contract Act.

c) That in allowing the Preliminary Objection aforesaid, the learned Judge duly observed that, given the circumstances and nature of the claim and considering that the preliminary objection was raised before filing of the defence ordered each party to bear their respective costs of the suit.

d) That a plain reading of the ruling aforesaid will reveal, that the ruling disposed off, not only the plaintiff’s suit, but the defendant’s counter-claim as well. That it has now emerged that the defendant herein holds a contrary view, to wit, that the subject ruling only disposed off the plaintiff’s case and left the counter-claim intact.

e) That it is therefore necessary that the subject file herein be forwarded to Honourable Justice A. Omollo, who is now based in the ELC Court at Busia for her considered interpretation as to her true intention in the subject ruling.

f) That the interest of justice can only be served herein by such final interpretation of the rights of the parties hereto being pronounced by the Judge who issued the ruling.

g) That the defendant does not stand to suffer any prejudice were the instant application to be allowed.

2. In opposing the application the defendant filed grounds of opposition dated 24th June, 2020 on the following grounds:

1. That in law a counter-claim is treated as a suit on its own and the dismissal of the plaintiff’s suit does not amount to the dismissal of the counter-claim raised by the defendant.

2. That the ruling delivered by the court requires no interpretation for it is clear as to its contents and total effect.

3. The court does not have jurisdiction to interpret the ruling delivered on 22nd September, 2017.

4. Without prejudice to ground 3 above, the application filed by the plaintiff is too general as it does not set out the specific portion of the ruling which the plaintiff wants interpreted.

5. That the application filed by the plaintiff does not pass the test laid down under the relevant provisions of the law and the principles explicated in decided cases for review and/or “interpretation” of decisions delivered by the court.

6. Further to ground 5 above, the Notice of Motion dated 25th February, 2020 is an abuse of the court process and a waste of precious judicial time as the plaintiff has not shown the need for interpreting the ruling delivered by the court on 22nd September, 2017. If the plaintiff believes that the said ruling dispose off not only the plaintiff’s suit, but also the defendant’s counter-claim, the plaintiff would have simply filed an objected (sic) to the proceedings with respect to the counter-claim and not seek an interpretation of the ruling delivered by the court.

7. That there is no requirement in law or practice that the judge who delivered the ruling must be the one interpreting it.

8. That the plaintiff is forum shopping for a specific court to hear its application which is not acceptable in law as it amounts to an abuse of the court process.

9. That in (sic) is not cost effective, it is time consuming and would cause undue hardship to the parties (both based in Mombasa) to have them argue an application in Busia

3. The application as canvassed by way of written submissions which were also highlighted by the advocates for the parties. Mr. Busieka, learned counsel for the plaintiff submitted since the parties hereto are at variance of mind as regards the interpretation of the said ruling as to the fate of the case and counter-claim, for the avoidance of doubt, there is no prejudice to be suffered by the defendant were the case to be referred to Omollo J for interpretation of the true intention of her ruling aforesaid rather than saddling this court with that onerous responsibility. The plaintiff’s counsel submitted that Section 3A of the Civil Procedure Act clothes the instant court with powers to hear and determine the application herein. He relied on the case of Wachira Karani –v- Bildad Wachira (2016)eKLR; Permanent Secretary Ministry of Energy, Republic of Kenya & 19 Others Ex-Parte Intestate Petroleum Company Ltd & 2 Others (2014)eKLR; John Ngugi Gachau –v- Alexander Ngotho Ngunyi & 3 Others(2017)eKLR. The plaintiff’s submission is that the application herein is not for review of the ruling aforesaid, and neither is it brought under the slip rule to correct arithmetical and/or grammatical error as provided for under Section 99 of the Civil Procedure Act in order for the court to give effect to the true intention and purport of the said ruling. Counsel for the plaintiff urged the court to allow the application.

4. On his part, Mr. Gikandi learned counsel for the defendant submitted that where one judge has retired or gone to another station, it is the judge who has taken over the matter to interpret anything in the matter, adding that a file cannot follow a judge wherever he/she goes. The defendant’s counsel relied on the case of Hangzhou Agrochemical Industries Ltd- v- Panda Flowers Limited (2012)eKLR. He submitted that there is no law or authority he has come across that requires that interpretation of a judge’s rulings or judgments must be by that judge whatever his/her geographical location. It was his submission that there is a consistent practice by the superior courts where a judge’s interprets a ruling or judgment delivered by another judge. He relied on the case of Josphat M. Mudamba –v- Kenya Revenue Authority (2006)eKLR; John Wagacha Thuo –v-Joseph Muya & Another (2005)eKLR; Kenya Guards & Allied Workers Union –v- Registrar of Trade Unions & 3 Others (2014)eKLR and In Re-Estate of Kimilu Nzau Kivati (deceased)(2020)eKLR where different judges interpreted rulings delivered by their colleagues. The defendant’s counsel further submitted that even under Order 45 of the Civil Procedure Rules, a different judge can consider an application for review where the judge who delivered the ruling is no longer in the station, Mr. Gikandi cited the case of Dubai Bank Kenya Limited –v- Kwanza Estates Limited (2015)eKLR where a judge heard a review application while the judge who made the ruling was still within the same station but had been moved to another division. He submitted that there is no requirement that Omollo J must be the one, and only one to interpret her ruling, adding that asking parties to agitate their cases in Busia would significantly escalate costs, result in delays and become extremely inconveniencing. The defendant’s counsel submitted that there is no basis laid for transfer of the matter to Busia and that such transfer would offend the overriding objective of the civil litigation and urged the court to dismiss the application with costs.

5. I have considered the application and the rival submissions. The only issue to consider is whether this file should be forwarded to Hon. Lady Justice Omollo in Busia for interpretation of the ruling the learned judge delivered on 22nd September, 2017. It is clear that the application seeks not to transfer this matter to Busia, but simply to refer the subject file hereof to Hon. Lady Justice A. Omollo for her considered interpretation of the said ruling as concerns its total effect on the instant proceedings.

6. In their submissions the plaintiff’s counsel cited the case of John Ngugi Gachau (supra) which quoted with approval the decision of Emukule j in Rapid Kate Services Limited –v- Freight Forwarders Kenya Limited & 2 Others (2005)eKLR. I do not think this case is of any assistance to the plaintiff as the same dealt with transfer of cases from one High Court to another and not simply to refer the subject file to a particular judge who made a ruling for purposes of the interpreting the said ruling. The same applies to the case of Hangzhou Agrochemical industries Ltd (supra) cited by Mr. Gikandi for the defendant.

7. I have also perused the cases of Josphat M. Mudamba (supra), John Wagacha Thuo (supra), Kenya Guards and Allied Workers Union (supra) and David Mumo Ndambuki (supra) cited by Mr. Gikandi. I note that all these cases relate to the interpretation of judgment, ruling and order by different judges other than the judges who delivered the judgments, rulings, and or orders. To be specific, I note that in the case of Josphat M. Mubamba (supra), H.P.G. Waweru J, was interpreting the judgment of Mbaluto, J; in the case of John Wagacha Thuo (supra), Hon Justice Muga Apondi was interpreting the Ruling of Hon. Justice Visram; in the case of Kenya Guards and Allied Workers Union (supra), Hon. Justice Mathews N. Nduma was interpreting the ruling of Hon. Nambuye J; while in the case of DavidMumo Ndambuki (supra) Hon. G.V. Odunga J, was interpreting a ruling delivered by Mutende J.

8. In my considered view, and being persuaded by the above referred decisions, I think that a ruling pronounced by a judge who has since moved to another station can be interpreted by the judge currently handling the matter. It is important to remember that, in the ordinary way, judges are transferred to new stations and other judges who come in to replace them are deemed competent and have the power to handle the matters of that particular station, including the interpretation of rulings. Such a power, I think is beneficial because it avoids the absurdity and consequential expense of the parties and the court of having to keep forwarding files to stations that judges who previously dealt with the cases have been transferred to. If the courts in Kenya exercise the discretion to refer files to judges who previously dealt with a file and delivered rulings and judgments and have since been transferred to other stations, it is likely that injustice or hardship will be caused to the parties and also result into a lot of confusion. I agree with Mr. Gikandi’s submission that a file cannot follow a judge wherever he/she goes. I am not therefore not persuaded that I should exercise my discretion in favour of the plaintiff to refer this file to A. Omollo J who is now based in Busia.

9. The upshot is that this application is devoid of merit. The application is therefore dismissed but with no order as to costs.

10. It is so ordered.

DATED, SIGNED and DELIVERED at MOMBASA virtually due to COVID-19 Pandemic this 2nd day of February, 2021

___________________________

C.K. YANO

JUDGE

IN THE PRESENCE OF:

Yumna Court Assistant