[2024] KEHC 15968 (KLR)

Jawla v Kaaria & 2 others (Commercial Miscellaneous Application E398 of 2024) [2024] KEHC 15968 (KLR) (Commercial and Tax) (13 December 2024) (Ruling)

Neutral citation: [2024] KEHC 15968 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts)

Commercial and Tax

Commercial Miscellaneous Application E398 of 2024

MN Mwangi, J

December 13, 2024

Between

Ajay Kumar Jawla

Applicant

and

Joy Karwitha Kaaria

1st Respondent

Imports By Kairo Limited

2nd Respondent

Luxury Vehicle Imports Limited

3rd Respondent

Ruling

1. The applicant filed a Notice of Motion application dated 5th November 2024 pursuant to the provisions of Sections 1A, 1B, 3, 3A & 80 of the Civil Procedure Act, Order 45 Rule 2 & Order 51 Rules 1 & 3 of the Civil Procedure Rules, 2010, Article 159(2) of the Constitution of Kenya, 2010 and all enabling provisions of the law. The applicant seeks orders inter alia, that this Court vacates, varies, sets aside, and/or reviews its ruling delivered on 25th October 2024, dismissing the applicant’s application with costs to the 1st respondent.

2. The application is anchored on the grounds on the face of the Motion, and it is supported by an affidavit sworn on the same day by Mr. Ajay Kumar Jawla, the applicant herein. The applicant seeks a review of this Court's ruling delivered on 25th October 2024, citing errors on the face of the record that could cause significant prejudice to him. Mr. Jawla averred that this Court erroneously stated the Certificate of Delay was dated 3rd May 2024, instead of the correct date, being 7th May 2024. The applicant contended that the Court mistakenly noted the application for leave to appeal out of time was filed on 23rd May 2024, whereas it was filed on 10th May 2024, leading to a wrongful conclusion of inordinate delay. It was stated by the applicant that contrary to the Court's findings, the draft Memorandum of Appeal demonstrates that the appeal is arguable with high chances of success, and that the application does not claim that the applicant was wrongly sued in the Trial Court. He asserted that the instant application was filed promptly, as the ruling of 25th October 2024 by the Trial Court was only made available on 5th November 2024.

3. In opposition to the application, the 1st respondent, Ms Joyce Karwitha Kaaria, filed a replying affidavit sworn on 11th October 2024. She contended that whether or not a Court should grant leave for the filing of an appeal out of time is a matter of judicial discretion. Thus, where a party is aggrieved with the exercise of such discretion, the proper avenue to ventilate such a grievance is in the appellate Court and not by way of review. She averred that this Court correctly exercised its discretion when determining the applicant’s application dated 9th May 2024 seeking orders to file an appeal out of time. She further averred that even if the Court acknowledges an error in the dates and the resultant finding of inordinate delay, that would not affect the other findings. She asserted that by filing the instant application, the applicant is improperly asking this Court to sit on appeal of its own decision, which is beyond the scope of its role as a review Court.

4. The instant application was canvassed by way of oral submissions. Mr. Mbugua, learned Counsel for the applicant submitted that the 1st respondent did not submit on whether or not the applicant has an arguable appeal. Further, that this Court in its ruling of 25th October 2024 did not determine the issue of irreparable harm. Counsel relied on the case of National Bank of Kenya Limited v Ndungu Njau [1997] KECA 71 (KLR), and urged this Court to correct the error on the face of the Court record.

5. Mr. Wanyama, learned Counsel for the 1st respondent submitted that even if this Court were to find that there was no inordinate delay in filing the application seeking leave to file an appeal out of time, the applicant would still not succeed on the other two grounds for being reactionary, and by having an unmeritorious appeal.

6. In a rejoinder, Mr. Mbugua cited the provisions of Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, 2010, and submitted that this Court’s discretion was exercised based on a mistake and an error apparent on the face of the record.

Analysis And Determination. 7. I have considered the application filed herein, the grounds on the face of it, and the affidavit filed in support thereof. I have also considered the replying affidavit by the 1st respondent and the oral submissions made by Counsel for the parties. The issue that arises for determination is whether I should review the ruling of 25th October, 2024.

8. Applications for review are provided for under Section 80 of the Civil Procedure Act, Cap 21 Laws of Kenya and Order 45 Rule 1 of the Civil Procedure Rules, 2010. The Court in the case of Alpha Fine Foods Limited v Horeca Kenya Limited & 4 others [2021] eKLR, in dismissing an application for review held that-…section 80 prescribes the power of review while Order 45 stipulates the rules. However, the rules limit the grounds for evaluating requests for review. Simply put, there are definite limits to the exercise of power of review. The rules prescribe the jurisdiction and scope of review. They limit review to the following grounds:a.Discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made or;b.On account of some mistake or error apparent on the face of the record; orc.For any other sufficient reason and whatever the ground there is a requirement that the application has to be made without un reasonable delay.

9. The applicant’s case is that there is an error apparent on the face of the record to warrant this Court to review its ruling of 25th October 2024, on the ground that this Court erroneously indicated that the Certificate of Delay was dated 3rd May 2024, instead of the correct date, being 7th May 2024. The applicant also states that the Court mistakenly noted that the application for leave to appeal out of time was filed on 23rd May 2024, whereas it was filed on 10th May 2024, leading to a wrongful conclusion of inordinate delay.

10. Upon perusal of the said application the Case Tracking System (CTS), I agree with the applicant that indeed there is an error apparent on the face of the record in respect to the date of the Certificate of Delay, and the date when the application for leave to file an appeal out of time was filed. Notably, the Certificate of Delay is dated 7th May 2024 and not 3rd May 2024 as indicated in the ruling of 25th October 2024, and the application for leave to file an appeal out of time was filed on 10th May 2024 and later amended on 23rd May 2024. In the premise, this Court finds that there was no inordinate delay in the filing of the application for leave to file an appeal out of time.

11. The issue of whether or not the applicant has an arguable appeal was determined by this Court in its ruling delivered on 25th October 2024. This Court directed its mind to the said issue and found that the applicant had not demonstrated that he has an arguable appeal with high chances of success to warrant this Court to exercise its discretion in his favour. I am therefore not persuaded that there is an error apparent on the face of the record in respect to the said issue to justify an application for review by the applicant. This Court agrees with the 1st respondent that opening up the issue of whether the applicant has an arguable appeal will be tantamount to this Court sitting on appeal of its own decision, which is beyond the scope of its role as a review Court. The finding that the applicant does not have an arguable appeal was arrived at after considering the grounds of appeal in the applicant’s Memorandum of Appeal. That was this Court’s merit based decision, and it cannot be the subject of review.

12. It is therefore my finding that the applicant has partly made out a case to warrant a review of my ruling of 25th October 2024, but limited to the dates of the Certificate of Delay, and the date of filing the application for leave to appeal out of time, which are hereby reviewed to read 7th May 2024 & 10th May 2024, respectively, in the said ruling.

13. In view of the review of the dates mentioned above, I find that there was no inordinate delay by the applicant in filing the application for leave to appeal out of time. However, the same is not sufficient to warrant me to exercise my discretion in favour of the applicant and vary and/or set aside the ruling of 25th October 2024 in its entirety, since the finding that the applicant did not establish that he has an arguable appeal with high chances of success has not been disturbed.

14. The upshot is that the instant application is partly successful, but only to the extent stated in this ruling. Each party shall bear its own costs.

It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 13TH DAY OF DECEMBER 2024. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.NJOKI MWANGIJUDGEIn the presence of:Mr. Mbugua for the applicantNo appearance for the 1st respondentMs B. Wokabi - Court Assistant.