[2022] KEHC 11926 (KLR)

Kariuki v Njau (Commercial Appeal E040 of 2020) [2022] KEHC 11926 (KLR) (Commercial and Tax) (17 June 2022) (Ruling)

Neutral citation: [2022] KEHC 11926 (KLR)

Republic of Kenya

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

Commercial and Tax

Commercial Appeal E040 of 2020

A Mshila, J

June 17, 2022

Between

Jackline Njeri Kariuki

Applicant

and

Moses Njung’e Njau

Respondent

Ruling

1. The notice of motion dated August 2, 2021 was brought under sections 80, 63 (e) and 3A of the Civil Procedure Act and under order 45 rule 1 (1), order 21 rule 5, 22 rule 25 and order 12 rule 7 of the Civil Procedure Rules. The applicant sought the following orders;a.The court to issue a stay of execution of the judgment/ decree issued herein by Hon Justice Ngenye on the July 22, 2021 pending the hearing and determination of this application;b.The court to vary, review and or set aside its judgment delivered by hon Justice Ngenye on July 22, 2021;c.The court be pleased to issue any other order(s) that it may deem fit and just thereof;d.Costs be in the cause.

2. The application was supported by the sworn affidavit of Jackline Njeri Kariuki who stated that the hon Justice Ngenye read and delivered her Judgment on July 22, 2021 but failed to make any determination as to the balance owed to the appellant being the sum of Kshs 390, 000. 00.

3. In light of the above the judgement, there is an apparent error on the face of the record where an issue brought forth for determination was not determined as espoused under order 21 rule 5 where courts are bound to state findings on issues brought forth by litigants.

4. The applicant stands to suffer if the sum of Kshs 520, 000/- is released to the respondent prior to the pertinent determination of the issue of Kshs 390, 000/- owed to the appellant by the respondent.

5. The respondent filed a replying affidavit dated September 13, 2021 and stated that it is trite law that where a relief sought is not expressly granted in the judgment such relief is deemed to have been dismissed and it follows that the appellant's appeal only succeeded to the extent contained in the judgment of this court being the substitution of the award of special damages of Kshs 529,256 with an award of Kshs 114,256 and reversal of the order for transfer of the motor vehicle.

6. The orders sought by the applicant therefore goes to the merit of the judgment which can only be addressed by way of an appeal.

7. An error on the face of record does not require a long drawn process or argument as contained in the applicant's supporting affidavit and the application is therefore unmerited. There is no error apparent on the face of record and/or any sufficient reason advanced and/or demonstrated by the applicant to warrant review of the judgment.

Applicant’s Case 8. It was the applicant’s submission that while section 80 of the Civil Procedure Act grants the court the power to make orders for review, order 45 sets out the jurisdiction and scope of review by hinging review to discovery of new and important matters or evidence, mistake or error on the face of the record and any other sufficient reason.

9. In the instant application the appellant seeks an order for review on the single ground that there was an error apparent on the face of the record as the learned Judge failed to make any determination as to the balance owed to the appellant being the sum of Kshs 390,000/-.

10. The applicant argued that it is notable from the judgment of Justice Ngenye the issue of the sum of Kshs 390,000/- was omitted. It is not in dispute that the respondent owed the appellant the sum of Kshs 390,000/-. This fact was equally held by Justice Ngenye at paragraph 46 of her judgment. This fact is also admitted by the respondent at paragraph 5 and 10(h) of the plaint on page 3 and 5 respectively of the record of appeal.

11. An error apparent on the face of the record must be a self-evident error, which need not require elaborate arguments to support it. In the Instant case, it is perspicuous that the learned judge failed to determine the issue of the sum of Kshs 390, 000/- owed to the appellant and as such the judgment therein necessitates to be reviewed.

12. It was the Applicant’s position that The doctrine of res judicata is set out in section 7 of the Civil Procedure Act. The doctrine ousts the jurisdiction of a court to try any suit or issue, which had been finally determined by a court of competent jurisdiction in a former suit involving the same parties or parties litigating under the same title.

13. Section 7 of the Civil Procedure Act does not preclude nor bar a party who is aggrieved by a decision from either seeking a review or appealing the said decision. These are separate remedies provided for under our judicial system for an aggrieved party and the same does not constitute re- litigating a matter as provided for under section 7 of the civil Procedure Act. The issue of res Judicata is not applicable herein.

14. The applicant submitted that the application herein meets the threshold for review and has been made without delay and it is not intended to obstruct justice. The judgment herein was delivered on July 22, 2021 and the application herein was filed on 2nd of August 2021 which translates to a period of 10 days after delivery of the Judgment.

Respondent’s Case 15. The respondent in response submitted that paragraph 5 of the respondent's replying affidavit outlines the appellant/ applicant's memorandum of appeal on the ground of special damages which the court in its judgment on July 22, 2021 sufficiently made a determination on by substituting the award made by the trial of Kshs 529, 526 with an award of Kshs 114, 256 which makes the orders sought in this application res judicata as it was substantially the same issue raised by the applicant on appeal and successfully heard and determined on merit.

16. Further, that the applicant stated in her supporting affidavit that her appeal sought inter alia payment of the balance of the purchase price for Kshs 390,000 and payment of penalty of Kshs 520,000 for breach of contract and costs of the suit and contends that in the judgment delivered on July 22, 2021, no determination was made on these issues raised particularly on the balance of the purchase price. She reiterates that the error on the face of the record is brought about by failure of the court to make determination on issues raised by litigants as provided for under order 21 rule 5.

17. An error apparent on the face of the record must be a self-evident error which need not require elaborate arguments to support it. In this instance, parties are in consensus that judgment on special damages was wholly determined by substituting the award of Kshs 529,526 with an award of Kshs 114,256. The applicant's grievance is rather that the court failed to make a determination on the issue of ground of appeal for payment of the balance of Kshs 390,000 being the purchase price which we submit goes to the merit of the judgment. In the judgment, this court upheld the trial court decision finding the applicant to be in breach of contract and consequently his claim for penalty for breach by the respondent was disallowed while the balance of the purchase price was not addressed.

18. In the case ofMuyodi v Industrial and Commercial Development Corporation & Anor [2006] 1 EA 243 the court rendered itself thus;“There is real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of laze stares one in the face, and there could reasonably be no two opinions, n clear case of error apparent on the face of the record would be made out. An error which has to be established by a long drawn process of reasoning or on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error apparent on the face of the record even though another view is also possible. Mere error or wrong view is certainly no ground for a review although it may be for an appeal. This laid down principle of law is indeed applicable in the matter before us.”

19. The respondent opined that the error alleged by the appellant on the decree is not an obvious one, rather it calls for this court to re-look into the merits of its judgment by an established process of reading. It should be an obvious and patent mistake but not something which can be established by a long drawn out process of reading on points on which may be conceivably be two opinions.

Issues For Determination 20. The court has taken into consideration the application, response and the written submissions by the parties and has framed only one issue for determination;

a.Whether there is an error apparent on the face of the record to warrant a review of the judgment of July 22, 2021?

Analysis Whether there is an error apparent on the face of the record to warrant a review of the judgment of July 22, 2021? 21. The applicant’s application herein is anchored on the fact that there is an apparent error on the face of the record on the judgment; where an issue brought forth for determination was not determined as espoused under order 21 rule 5 of the Civil Procedure Rules where courts are bound to state findings on issues brought forth by litigants.

22. Section 80 of the Civil Procedure Act and order 45 rule 1 of theCivil Procedure Rules provides as follows: -Section 80 of the Civil Procedure Act - Review“Any person who considers himself aggrieved—(a)by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”

23. Order 45, rule 1 of the Civil Procedure Rules - application for review of decree or order.“1(1)Any person considering himself aggrieved—(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or(b)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 a 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.(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review”

24. In Nyamogo & Nyamogo Advocates vs Moses Kipkolum Kogo Civil Appeal No. 322 of 2000 [2001] 1 EA 173 discussing what constitutes an error on the face of the record, the court rendered itself as follows: -“An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of un definitiveness inherent in its very nature and it must be determined judicially on the facts of each case. There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error apparent on the face of the record even though another view was possible. Mere error or wrong view is certainly no ground for review though it may be one for appeal.”

25. The applicant argued that the impugned judgment did not make any determination as to the balance owed to the appellant being the sum of Kshs 390,000/-. The applicant is in essence questioning the court’s assessment of the case and in her view concludes that the court made an error of judgment.

26. In Republic v Advocates Disciplinary Tribunal Ex Parte Apollo Mboya [2019] eKLR the court held as follows:“In Attorney General & O’rs v Boniface Byanyima HCMA No 1789 of 2000, the court citing Levi Outa v Uganda Transport Company {1995} HCB 340, held that the expression “mistake or error apparent on the face of record” refers to an evident error which does not require extraneous matter to show its incorrectness. It is an error so manifest and clear that no court would permit such an error to remain on the record. It may be an error of law, but law must be definite and capable of ascertainment.There is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by 'error apparent'. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected. A review lies only for patent error where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out, see the decision in Thungabhadra Industries Ltd v Govt of AP 1The term "mistake or error apparent" by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of order 45 rule 1 of the Civil Procedure Rulesand section 80 of the Act. To put it differently an order, decision, or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the court/tribunal on a point of fact or law. In any case, while exercising the power of review, the court/tribunal concerned cannot sit in appeal over its judgment/decision.”

27. Be that as it may, an error apparent on the face of the record is a clear case of error and two opinions cannot be formed out of it. In order to determine the balance owed to the appellant in the sum of Kshs 390,000/-, reappraising the evidence to see if indeed there is such error of judgment or failure to take into consideration matters which ought to have been taken into account when making the impugned judgment will be required. The applicant’s averments may be good grounds of appeal because it challenges the merits of the decision the court.

28. The Court of Appeal inFrancis Origo & another v Jacob Kumali Mungala [2005] eKLR expressed itself as follows: -“Our parting shot is that an erroneous conclusion of law or evidence is not a ground for a review but may be a good ground for appeal.”

29. It is clear that an error apparent on the face of the record must be a self-evident error which need not require elaborate arguments to support it. In the court’s considered view, the applicant has not demonstrated that there is an error/omission apparent on the face of the record which would necessitate a review of the judgment.

Findings And Determination 30. For the forgoing reasons the application is found lacking in merit and it is hereby dismissed.

31. The applicant is hereby condemned to pay the costs of this application.Orders accordingly.

DATED, SIGNED AND DELIVERED ELECTRONICALLY AT NAIROBI THIS 17THDAY OF JUNE, 2022. HON. A. MSHILAJUDGEIn the presence of;Mr. Karanja holding brief for Githinji for the respondentHaggai holding brief for Miss Githogori for the appellantLucy -------------------------Court Assistant