[2022] KEHC 351 (KLR)

Kenya Commercial Bank Ltd v Kungu (Civil Appeal 28 of 2020) [2022] KEHC 351 (KLR) (10 May 2022) (Judgment)

Neutral citation: [2022] KEHC 351 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Civil Appeal 28 of 2020

RM Mwongo, J

May 10, 2022

Between

Kenya Commercial Bank Ltd

Appellant

and

Mwema Kungu

Respondent

Judgment

1. The brief background of this matter is that the plaintiff/respondent sued Kenya Commercial Bank for, inter alia, “an order directing the defendant to refund to the plaintiff unlawfully recovered interest, bank charges and penalties”. Paragraph 7 of the plaint asserted that the amount of those “unlawful charges in the form of bank charges and penalties [totalled] about Kshs 3,600,000/=”

2. The trial was held with only the plaintiff and his sole witness, an accountant, testifying. The trial court gave judgment for the plaintiff, without indicating the amount awarded.

3. The plaintiff applied to the court to review and correct its judgment to include the figure of Kshs 3,600,000/= as payable to the plaintiff. The review was contested. In its ruling of 21/7/2020 the trial court awarded the said amount.

4. Dissatisfied with the ruling, the appellant has appealed for the setting aside of the ruling on the following grounds:i.That the Honorable Magistrate erred in law and in fact in allowing the respondent application dated 7th February 2020 for review of the judgment delivered on 21st February 2019 as there was no proof of discovery of new and important matter or evidence not within the knowledge of the respondent herein before the said judgment was passed.ii.That the Honorable Magistrate erred in law and in fact in allowing the respondent application dated 7th February 2020 for review of the judgment and decree delivered on 21st February 2019 as there was no error or mistake apparent on the face of the said judgment and decree.iii.That the Honorable Magistrate erred in law and in fact by disregarding the fact that the respondent had not specifically claimed for nor pleaded for a refund of Kshs.3,600,000/ = alleged to have being overcharged by the appellant hence the respondent’s application dated 7th February, 2020 had no merit and should have been dismissed.

5. The parties filed written submissions for the disposal of the appeal. The only issues for determination were:a.Whether the respondent satisfied the legal grounds for review of the judgmentb.Whether the review should have been allowed when the award of Kshs 3,600,000/= had not been prayed for

6. It is trite that the mandate of this court on first appeal is to re-assess and re-evaluate the evidence on first appeal, it is a very strong thing indeed for the Court not to interfere with a trial judge’s findings on facts unless the circumstances enumerated in the above cases are fully satisfied. This power emanates from the Constitution and Statutory power which deals with the jurisdiction on Civil Appeals

Appellant’s submissions

7. On the first issue, the appellant submits, citing Section 80 of the Civil Procedure Act and Order 45 of Civil Procedure Rules, that the judgment and decree of the lower court did not contain any mistake or error apparent on the face of record, as the same was delivered according to the prayers sought by the respondent in the plaint.

8. They rely on the case of Grace Akinyi v Gladys Kemunto Obiri and & another [2016] eKLR where Justice Antony Ombwayo relied on the Court of Appeal case in Civil Appeal No. 211 of 1996,National Bank of Kenya v Ndungu Njau, in which that Court the held:A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be sufficient ground for review that another Judge could have taken a different view of the matter nor can it be a ground for review that the court preceded on an incorrect expansion of the law”.

9. In essence, the thrust of the appellant’s argument was that the alleged overcharge on the loan account was respondent application in the lower court was that the appellant had overcharged him on his loan account to the tune of 3,600,000/=. This was thus not an issue which the respondent had recently discovered nor is it one that was not within his knowledge before the judgment was passed. The respondent was well aware of his claim against the appellant hence he should have ensured that he made the proper prayers before the lower Court

10. On the second issue the appellant argues that the basis of the respondent application dated 7th February, 2020 was to include a specific award of Kshs. 3,600,000 payable to the respondent by the appellant which amount was not specifically prayed for in the respondents plaint dated 18th August, 2017. The appellant relied on the well-known principle that: The law on award of special damage is notorious and well settled, and as pleaded by the appellant. It must not only be pleaded; it must be specifically proved. This was the gist of the case of Solomon Luyali v Jeremiah Makore Wetende [2019] eKLR.

11. Accordingly, argues the appellant, there was no error apparent on the face of the judgment capable of review; and the trial Court had clearly made out a correct and reasoned judgment in view of the plaint filed by the respondent hence there was no basis for review.

Respondent’s submissions

12. The respondent’s submissions were that the court allowed the plaintiff’s claim after having heard the evidence as regards to the amount of Kshs 3,600,000/=. That the advocate had omitted the amount in his prayers was a mistake which ought not to be visited upon the client. The court issued a decree dated 11th March 2019 in which the court ordered that: “That this court hereby issues an order directing the defendant to refund to the plaintiff the aggravated unlawfully recovered interests, bank charges and penalties."

13. The respondent asserted that the above claim had been pleaded by the respondent in his plaint, witness statement and list of documents.Paragraph 7 of the plaint indicated the claim to be Kshs 3,600,000/= hence it was specifically claimed that the error was failure to specifically claim it but the court having found in favour of the plaintiff to amount was proved to this court there is sufficient ground to review the judgment

14. The respondent had prayed for: An order directing that the defendant to refund to the plaintiff the aggravated unlawful recovered interest, bank charges and penalties. As such, the award was not "plucked from the air" as submitted by the appellant. It was evident that the aggravated unlawfully recovered interest, bank charges and penalties refers to the amount of Kshs 3,600,000/= as pleaded in paragraph 7 of the plaint.

15. The respondent argued that the facts of the case in Solomon Luyali v Jeremiah Makore Wetende(2019) eKLR relied on by the appellant are distinguishable from the present case since the appellant in the case had only prayed for general damages while in the instant case, the respondent specifically prayed for refund of the aggravate unlawfully recovered interest, bank charges and penalties

Analysis and Determination

Whether the respondent satisfied the legal grounds for review of the judgment

16. As pointed out by the appellant, the statutory review provisions are found in section 80 of the CPA and Order 45 of the CPR. Section 80 provides as follows on review:80. 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.”

17. Section 80 is expounded by Order 45 Rule (l) (b) of the Civil Procedure rules provides specific procedures for applications for review of decree or order as follows:(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.” (Emphasis supplied).

18. Under the review provisions of section 80 and Order 45, there are two discrete premises upon which a review is allowable. They respond to two questions which must be answered before a review is invoked:a)First, is the applicant aggrieved by a decree or order from which an appeal is allowed but such appeal has not been preferred? Or, alternatively,b)Second, is the applicant aggrieved by an order or decree from which no appeal is allowed but has discovered new material or evidence which he could not through diligence previously have discovered, or has discovered a mistake or error apparent on the face of the record, or for any other sufficient reason, desires a review.If any of the two questions can be answered with a ‘yes’ the aggrieved party can seek review.

19. The respondent had in his possession a judgment with orders in it. Applying the test for invocation of the power of review in section 80 and Order 45, the first question is whether the orders were appealable but no appeal has been preferred. There is no indication or allegation that an appeal had been preferred, so that little matter is out of the way.

20. Was the judgment and the orders granted by the trial court capable of appeal? The answer to this question is, yes. This is as provided by section 65 of the CPA in the following terms:65. (1)Except where otherwise expressly provided by this Act, and subject to such provision as to the furnishing of security as may be prescribed, an appeal shall lie to the High Court—(a)… Deleted by Act No. 10 of 1969, ……(b) from any original decree or part of a decree of a subordinate court, other than a magistrate’s court of the third class, on a question of law or fact”

21. So that, clearly, since the judgment involved a matter determined in a subordinate court of the Senior Resident Magistrate, any decree of that court is appealable, unless otherwise expressly provided otherwise. In addition, there is no indication or assertion that the lower court’s judgment was one in which no appeal is allowed, which would have necessarily led me to consider whether a review would be fixated on the issue of discovery of new matters or mistake or error on the face of the record.

22. Was there a decree or part of a decree of the lower court in terms of section 65(b)? The CPA at section 2 defines decree to include a judgment as follows:decree” means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final; it includes the striking out of a plaint and the determination of any question within section 34 or section 91, but does not include—(a)any adjudication from which an appeal lies as an appeal from an order; or(b)any order of dismissal for default:Provided that, for the purposes of appeal, “decree” includes judgment, and a judgment shall be appealable notwithstanding the fact that a formal decree in pursuance of such judgment may not have been drawn up or may not be capable of being drawn up;” (Emphasis added)

23. Even if the judgment of the lower court had been one where no appeal is allowed, it is still clear that review is possible on the premises in Order 45 that allows an aggrieved person review “for any other sufficient reason”.

24. In Sadar Mohamed vs Charan Singh and Another{1963}EA 557 it was held that any other sufficient reason for the purposes of review refers to grounds analogous to the other two (for example error on the face of the record and discovery of new matter. Mulla in the Code of Civil Procedure,18thEdition, Reprint 2012, at Page 1147(writing on Order 47 Rule 1 of the Civil Procedure Code of India), (the equivalent of our Order 45 Rule 1), states that the expression 'any other sufficient reason’...means a reason sufficiently analogous to those specified in the rule.

25. Again, in Ajit Kumar Rath vs State of Orisa & Others, 9 Supreme Court Cases 596 at Page 608, the Supreme Court of India in the case had this to say:the power can be exercised on the application of a person on 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 order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for stabling it. It may be pointed out that the expression “any other sufficient reason” ..... means a reason sufficiently analogous to those specified in the rule”

26. Applying the foregoing jurisprudence to the matter at hand, I ultimately can see no reason for finding that the respondent did not satisfy the legal grounds for review of the judgment of the lower court. The review in the lower court was properly before the High Court. Whether the review should have been allowed when the award of Kshs 3,600,000/= had not been prayed for

27. The appellant argued that the respondent had not pleaded the amount awarded by the trial court upon review, and therefore it was not an amount awardable or payable. Further the respondent argued that the damages cannot be plucked from the air simply because a party alleges an injury or loss.

28. The respondent argued that the prayer sought by it was for:an order directing the defendant to refund to the plaintiff unlawfully recovered interest, bank charges and penalties”.Further that the amount was contained in paragraph 7 of the plaint.

29. I have carefully perused the plaint., and have seen the prayer and paragraph 7 of the plaint. I think these read together form the pleadings. Section 2 of the CPA defines pleadings in a wide and purposive manner as follows:pleading” includes a petition or summons, and the statements in writing of the claim or demand of any plaintiff, and of the defence of any defendant thereto, and of the reply of the plaintiff to any defence or counterclaim of a defendant;

30. It is clear for all to see, and there is no doubt in my mind that paragraph 7of the plaint which sets out the amount demanded by the respondent, read together with the prayers, which demand that the amount stated as bank charges and interest constitute a pleading capable of execution.

31. What is important is that review proceedings must be limited to simple matters such as correction of errors apparent on the face of the record, discovery of new matters or evidence, and similar issues which do not require elaborate argumentation, and which are self-evident.

32. This is the gist of the Court of Appeal decision in Civil Appeal No. 211 of 1996,National Bank of Vs Ndungu Njau where the Court held that:A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self evident and should not require an elaborate argument to be established.

Disposal 33. Ultimately, the appeal fails and I find that the review was properly before the Court for the grant of “an order directing the defendant to refund to the plaintiff unlawfully recovered interest, bank charges and penalties” as set out in Paragraph 7 of the as “unlawful charges in the form of bank charges and penalties [amounting to] Kshs 3,600,000/=”

34. In the premises, the appeal fails and is hereby dismissed with costs.

35. Orders accordingly.

DATED AND DELIVERED AT KERUGOYA THIS 10THDAY OF MAY, 2022HON JUSTICE RICHARD MWONGOJUDGEDelivered in the presence of:Asiimwe holding brief for the he AppellantNdung’u holding brief for the RespondentMr. Murage, Court Assistant