[2004] KEHC 854 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

HIGH COURT CIVIL CASE NO. 42 OF 1998

HIGHWAY FURNITURE MART LTD …………….......………………. PLAINTIFF

VERSUS

THE PS OFFICE OF THE PRESIDENT )

THE ATTORNEY GENERAL ) ……......……………… DEFENDANTS

R U L I N G

By a notice of motion dated 13th July 2004, the Attorney – General who is for the Applicant/Judgment Debtor has moved this court under Order XLIV rule 1 and 4 of the Civil Procedures Rules seeking to have the judgment delivered by Juma J on 16th December 1998 reviewed on the grounds that there is an error apparent on the judgment. It is contended that there is a disparity between the judgment of Juma J which was for Kshs.9,296,132, and the decree issued by the court which showed that judgment was for Kshs.11,257,118/= and that the decree also provides for interest at the rate of 36% which was never awarded in the judgment. It is contended that as a result of these anomalies the Plaintiff/ Respondent has been grossly overpaid. The Applicant therefore urges the court to declare the decree to be at variance with the judgment of the court and to order the Respondents to refund the excess amount collected from the Applicants.

The Respondent contends that the Application is misconceived and ought to be dismissed with costs as order XLIV rule 1 does not apply as there is no error on the face of the record. It was submit that the decree had been properly drawn and that the application is an afterthought as the Applicants have in fact been making payments.

It is evident that under Order XLIV rule 1 & 4 of the Civil Procedure Rules, a party can only seek the remedy of review where the party seeking the remedy has not appealed against the judgment sought to be reviewed or where there is no right of appeal against such judgment.

In this case, the Applicant made efforts to file an appeal out of time but such efforts were thwarted when their application for leave was dismissed by the court of appeal. In effect therefore there has been no appeal by the Applicant against the judgment now sought to be reviewed, which means the application for review can properly be brought under Order XLIV rule 1 and 4 of the civil Procedure Rules.

The Respondents claim as pleaded against the Applicants in paragraph 1 of the plaint was for “Kshs.11,257,118/= plus 36% interest per annum from 12th October 1990 being the balance due and owing in respect of construction work” carried out by the Plaintiff.

In the prayers, the Plaintiff prayed for judgment for “the principal sum of shillings 11,257,118 together with interest at court rates from the date hereof until payment in full.

In his judgment of 16th December 1998 Hon. Juma J stated as follows:

“I am satisfied that at the time the suit was filed there was due and o wing to the Plaintiff by the Defendant a sum of Kshs.11,257,118/=. Since the suit was filed a sum of Kshs.1,960,985/95 has since been paid leaving a balance of Kshs.9,296,132. I therefore enter judgment for the Plaintiff against the Defendant in the sum of Kshs.9,296,132/= the Plaintiff shall have costs of this suit and interest as prayed in the plaint.”

The above judgment is plainly for Kshs.9,296,132/= together with costs and interest as prayed in the plaint. As indicated above the interest prayed for was interest at court rates on the amount claimed of Kshs.11,257,118/= from the date of the plaint until payment in full. There was no prayer for interest at 36% per annum nor did the Plaintiff either in his pleadings or evidence state the basis of this rate of interest and the court did not therefore award that rate of interest. It is apparent that the decree dated 13th January 1999 approved by the Deputy Registrar stated that there was a prayer for interest at 36% and reflected the court as having ordered such interest to be paid. It is evident that this decree as drawn does not reflect the correct position. There is an error apparent on the face of the record but the error is not on the judgment delivered on 16th December 1998, but on the decree extracted from this judgment as the interest on the decree ought to have been at 14% from 18th February 1998 to date of payment and not 36% from 12th October 1990. However the application before court, is for review of the judgment and not review of the decree. There being no error apparent on the judgment the notice of motion before court is incompetent as it ought to have applied for review of the decree and not review of the judgment delivered on 16th December 1998. I do therefore dismiss the notice of motion dated 13th July 2004.

Nevertheless since it is apparent that there is an error on the face of the record which error has resulted in the execution of a decree which includes an amount of Kshs.30 million as claim for interest which claim was neither prayed for nor proved nor awarded in the judgment, there is clearly an abuse of the court process which the court cannot ignore. The court therefore moves suo motto and invokes its inherent powers under section 3A of the Civil Procedure Act to correct this glaring injustice and hardship to the Defendants by setting aside the decree dated 13th January 1999 and all subsequent decrees and further order that a decree shall be redrawn and approved by the Deputy Registrar in accordance with the judgment of 16th December 1998. For the avoidance of doubt it is hereby reiterated that judgment is for the sum of Kshs.9,296,132/= and that costs and interest shall be on the original claim of Kshs.11,257,118/= at court rates from February 1998 (which is date on the plaint). Those shall be the orders of this court.

Dated signed and delivered this 17 th day of November 2004.

H. M. OKWENGU

JUDGE