[2023] KEHC 25554 (KLR)

Gulf African Bank v Aima Enterprises Limited (Civil Suit 403 of 2014) [2023] KEHC 25554 (KLR) (Commercial and Tax) (20 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25554 (KLR)

Republic of Kenya

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

Commercial and Tax

Civil Suit 403 of 2014

JWW Mong'are, J

November 20, 2023

Between

Gulf African Bank

Plaintiff

and

Aima Enterprises Limited

Defendant

Ruling

1. The applicant has moved the Court by a Notice of Motion application dated April 24, 2023 filed under order 9 rule 9 and rule 10 and order 45 of the Civil Procedure Rules, section 3A and 3B and section 67 and 80 of the Civil Procedure Act seeking the following orders:-1. Spent2. Spent3. Spent4. That this Honourable Court be pleased to review its judgment particularly paragraph 35 and 36 of its judgment delivered on December 5, 2016. 5.That costs of this Application be in the cause.

2. The application is supported by the grounds set within it and the supporting affidavit of Mohammed Abdi Abukar; the director of the Defendant sworn on April 24, 2023. The application is opposed and the Respondent has filed a replying affidavit sworn by Lawi Sato, Senior Legal officer of the Defendant.

3. In its application dated 24/4/2023 the Applicant seeks to review the Judgment of this Honourable Court issued on 5th December 2016 issued by Lady Justice Farah Amin (as she then was) at paragraph 35 and 36 of the said Judgment in which the Applicant argues that there is error on the face of the record. That the court in determining the rate of interest or profit applicable at 20% per annum placed reliance on a non-existent letter of offer purportedly signed by the parties on 20th October 2013, which reliance has caused the decretal amount to raise from the principal sum of Kshs. 10,201,837. 89 to Kshs.25,767,531. 46/- as at the time of execution application herein. The Applicant urged the court to find that there was an error on the face of the record and urged the court to allow the application as prayed.

4. In its opposition to the Application, the Respondent relied on the replying affidavit of LAwi Sato, the Senior Legal Officer of the Plaintiff/ Respondent. The Plaintiff argued that the Application as filed was bad in law, an abuse of the court process and did not meet the threshold for granting of review orders, as the same was an attempt by the Defendant/Applicant to delay the execution of the decree. The Plaintiff invited the court to find the judgment of the court granted on 5th December 2016 at Kshs.10,201,837. 89/- correctly attracted interest or profit at 20% per annum from 14th November 2013 on the Tawaliq Finance Facility dated 2nd October 2013, and that these letters were part of the list and bundle of the plaintiff’s documents, produced in evidence, before the court and that the court in making reference to the said letter. That the error so complained of was the reference by the court in the judgment of a letter dated 20th October 2013 instead of the letter dated 2nd October 2013, which error, in the plaintiff’s view, did not alter the facts in issue that there was indeed a loan that was to attract profit or interest at 20% per annum.

5. The second ground of opposition to the Application was the inordinate delay in bringing the matter. The Plaintiff argued that the Defendant waited for 7 years to raise the issue of the incorrect date of the impugned letter of offer of 20th October 2013 and had even commenced payment of the decretal sum and stopped only after paying Kshs.3,000,000. 00/-. That this therefore meant that this application was filed as an afterthought, whose sole purpose was to frustrate the execution of the decree thereto. The Plaintiff urged the court to find that there was no substance in the application as filed and dismissed it and allow the process of execution to proceed.

Analysis and Determination 6. I have carefully considered the pleadings by both parties and the rival arguments put forward in the oral and written submissions thereto. To my mind the only issue available for the court to consider is “whether the Application meets the threshold for grant of an Order for Review”. It is common ground that this suit was filed by way of plaint on 10th September 2014 and on 5th December 2016, judgment was entered for the sum of Kshs.10,201,837. 89/- with interest or profit at 20% per annum from 14th November 2013. After making several payments towards the settlement of the judgment debt, the Defendant on 24th April 2023, filed the present application arguing that the court relied on a non-existent letter of offer dated 20th October 2013 to order that the judgment debt be settled together with interest or profit at the rate of 20% per annum. The Court notes that while the Respondent agrees that reference to a letter of 20th October 2013 was erroneous, the Respondent argued that the same was minute error incapable of occasioning the Defendant any prejudice as there was produced in the plaintiff’s bundle of documents, a letter of offer dated 2nd October 2013, that provided for profit or interest on the loan facility at 20% per annum and as such the reference to 20th instead of 2nd was at best a typographical error incapable of overturning the judgment of the Court.

7. The plaintiff in their opposition to the application for review urged the court to be guided by the Court of Appeal decision in Synergy Industrial Credit Limited vs. I & M Bank & another, Civil Appeal (Application) No. E459 of 2021 where a 5 judge bench held as follows:-“….those errors did not go to the root of the matter that the court was dealing with. In determining whether or not the errors go to the root of the decision, the Court is required to consider the ruling holistically as opposed to merely picking out certain sentences out of context. We have done so in this matter and notwithstanding the errors pointed out, and based on our findings in this ruling, we hold that the said errors, had they not been committed, would not have materially affected the outcome of the decisions.”

8. In the case before this court, I am persuaded that the reference to a letter of offer dated October 20, 2013 does not materially change the substratum of the judgment noting that there was indeed produced in evidence a letter of offer dated October 2, 2013 which was not controverted or denied by the defendant. The court further notes that since the entry of Judgment in favour of the plaintiff on December 5, 2016, the judgment debtor has actively moved to have the debt settled and have made partial payment, an indication that they had no issues with the judgment as delivered by the court.

9. In sum, I note that the application as filed has not met the threshold for a grant of order for review of the judgment passed by the court. The said error, in my view, is minute and does not go to the substratum of the judgment. The judgment of the court is therefore upheld as passed on 5th December 2016. The application as filed is defeated. The same is hereby dismissed with costs to the plaintiff.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 20TH DAY OF NOVEMBER, 2023. J.W.W. MONG’AREJUDGEIn the Presence of:-1. Mr. Kigata for the Plaintiff/Decree Holder.2. Mr. No appearance for the Defendant/Applicant/Judgment Debtor.3. Amos - Court Assistant