[2017] KEHC 1127 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

COMMERCIAL & TAX DIVISION

CIVIL SUIT NO. 1261 OF 2002

KENYA POSTEL DIRECTORIES LTD........................PLAINTIFF

VERSUS

YELLOW PAGES PUBLISHING &

MARKETING LIMITED..............................................DEFENDANT

AND

BY COUNTERCLAIM

YELLOW PAGES PUBLISHING

& MARKETING LIMITED.........PLAINTIFF (COUNTERCLAIMER)

VERSUS

KENYA POSTEL DIRECTORIES LIMITED........1ST DEFENDANT

TELKOM KENYA LTD..........................................2ND DEFENDANT

RULING

Introduction

1. This is a motion for review of the decree given by this Court (Lady Justice Farah Amin J) on 2 March 2016.

2. The motion raises the question of whether the Court’s powers of review under Order 45 of the Civil Procedure Rules may be exercised in circumstances where the applicant alleges bias and partiality on the part of the judge who rendered the impugned decision.

Factual background

3. The Plaintiff (Kenya Postel Directories Limited) filed suit on 18 December 2002 against the Defendant (Yellow Pages Publishing & Marketing Limited). The Plaintiff complained about the infringement of its copyright by the Defendant and sought all the civil remedies available in copyright lawyering and litigation. The Plaintiff sought; injunctive orders, an account of profits, Anton Pillar orders and damages.

4. The Defendant, by way of return, on 3 April 2003 filed a Defence to the main action and also launched a counterclaim against both the Plaintiff and the 2nd Defendant (Telkom Kenya Ltd). In its prolix pleadings, the Defendant cross-accused the Plaintiff and the 2nd Defendant of passing off the Plaintiff’s products as those of the Defendant. The Defendant sought injunctive reliefs and damages.

5. The Plaint was later to be amended on 28 July 2005 to specifically include the Plaintiff’s special damages claim of Kshs 1,522,706,280/=.

6. Between 2002 and 2005, the parties also engaged in various intermediary motions. The motions sought conservatory orders. The motions also dealt with pre-trial procedures and issues. Then, on 30 May 2005, the Plaintiff listed the suit for trial. The trial was however adjourned due to incomplete pre-trial discovery. Again, when the suit was relisted by the Plaintiff for trial on 30 January 2006, it was adjourned at the instance and request of the Defendant. Subsequent relisting [for trial] on various dates between July 2006 and November 2012 were met with adjournments. In total, there were eight adjournments during this period.

7. A period of inaction followed. The matter was not relisted for trial even though in the meantime the parties continued to file documents in a process of continued discovery.

8. On 30 April 2015 the Defendant filed a motion seeking to dismiss the Plaintiff’s suit for want of prosecution. The Defendant contended that the Plaintiff had failed to prosecute its suit since 2009 and to comply with pre-trial directions and orders. Three weeks later, the 2nd Defendant also filed a motion. The 2nd Defendant’s motion also sought to have the suit dismissed for want of prosecution. The Plaintiff was accused of not having taken any action with a view to prosecuting the suit for a period exceeding three years.

9. Both applications were opposed by the Plaintiff. Both applications were urged before Hon. Farah Amin J. Both applications were allowed on 2 March 2016. The Plaintiff’s claim was dismissed. The Plaintiff was also ordered to pay costs of the suit to the Defendant. The 2nd Defendant was awarded costs on its application.

10. On 26 May 2016, the Plaintiff too filed a motion seeking to have the counter-claim lodged against it by the Defendant dismissed for want of prosecution. The Plaintiff complained that for a period of over 13 years the Defendant had failed to prosecute its counterclaim. Prior, the 2nd Defendant had also filed on 8 April 2016 an application to review the orders of Hon. Farah Amin J made on 2 March 2016. The 2nd Defendant sought to have the counterclaim dismissed for want of prosecution. The 2nd Defendant also asked for its costs [of the counterclaim] to be paid by the Defendant.

11. The basis of the application for review was that the Defendant had failed to prosecute the counterclaim and as the suit had been dismissed for want of prosecution the counterclaim too ought to have been dismissed. Both motions were opposed.

12. The two motions were again urged before Hon. Farah Amin J by way of written submissions. The motions were also simultaneously disposed off. The record of the Court file reveals that a ruling was delivered and that both applications were dismissed on 20 April 2017. The parties then moved to schedule a Case Management Conference even as the Defendant lodged its Bill of Costs for assessment as against the Plaintiff.

The Motion of 27 June 2017

13. As filed by the Plaintiff, the application seeks to review and vacate the orders of Hon. Farah Amin J of 2 March 2016, which orders dismissed the suit for want of prosecution. The application is premised on the fact of dismissal of the two applications filed on 26 May 2016 and 8 April 2016 by the Plaintiff and the 2nd Defendant respectively. The Plaintiff contends that the learned judge issued two contradictory decisions, yet the same were based on the same set of facts. Bias, on the part of the learned judge, is alleged. The Plaintiff insists that the decision is a nullity for being tainted with bias.

14. The application was opposed vide the Defendant’s Grounds of Opposition filed on 3 August 2017.

Arguments

15. Mr. D. Oyatsi who urged the Plaintiff’s case contended that the application of 27 June 2017 was well merited. Counsel revisited the facts as well as the litigation history as already outlined in the preceding paragraphs of this ruling. Counsel then lamented that by Hon. Farah Amin J disallowing an application to dismiss the counterclaim for want of prosecution pegged on the same facts as those earlier applied by the same judge while dismissing the suit for want of prosecution, the learned judge had applied different scales of justice. Counsel referred the Court to the case of Standard Chartered Financial Services Ltd & 2 Others v Manchester Outfitters (Suiting Division) Limited & 2 Others [2016]eKLRfor the proposition that bias was established where a right-minded man would go away thinking that there was real a likelihood of bias having looked at what the judge did.

16. Mr. Oyatsi then put forward the argument that in the instant case the judge had been biased against the Plaintiff. Mr. Oyatsi proceeded to urge the Court to review the “error apparent on the face of the record” and vacate the orders of 2 March 2016.

The Defendant responds

17. The Defendant’s case was urged by Mr. Ayisi.

18. Mr. Ayisi, whilst stating that the facts are clear, contended that the application was an abuse of process as it was an appeal disguised as a review application. Counsel insisted that the grounds of review under Order 45 of the Civil Procedure Rules are limited and the Plaintiff had not come within any of the grounds. Counsel added that the Court did not have jurisdiction to review a decision on the ground of bias. The Defendant’s counsel also accused the Plaintiff of an inordinate and inexcusable delay.

19. Counsel then relied on the case of Benjoh Amalgamated Limited & Another vKenya Commercial Bank Limited [2014]eKLRto advance for the proposition that the Court lacked the requisite jurisdiction to review the orders of 2 March 2016 when the only ground was a challenge to the judge’s impartiality.

The rejoinder

20. In his rejoinder, Mr. Oyatsi insisted that the apparent delay was explicable and it was due to the lack of a copy of the ruling rendered on 20 April 2017. Counsel also added that the Court always has jurisdiction to correct errors and injustice either by way of appeal or review, and the Plaintiff had in the instant case opted for the latter.

Discussion and determination

21. I have considered the application. I have also reflected on both the litigation history as well as the submissions by counsel. Two issues may be isolated for determination.

22. The first and main issue arising is whether this Court is properly seized with jurisdiction. As was stated in Owners of the Motor Vessel “ Lillian SS” –v- Caltex Oil Kenya Ltd [1989] KLR 1.

“Jurisdiction is everything. Without it a Court has no power to take one more step, where a Court has no jurisdiction there would be no basis for a continuation of proceedings…”

23. The second issue is whether the Plaintiff has established a ground for review reasonable enough to warrant the grant of the orders sought.

24. I hold the following view.

25. First, it would be appropriate to point out that the decision sought to be reviewed was rendered by Farah Amin J on 2 March 2016. The learned judge was, however, subsequent to the decision and for administrative reasons transferred. Attempts to have the file handled by the learned judge, like with many other files, were futile with her final directions that the cause be disposed off of by this Court. I must hasten to point out that I had previously earlier drawn the parties’ attention to this fact and the need to have the review application heard by the same judge. The parties were themselves mute in these respects.

26. Back to the question of the Court’s jurisdiction.

27. No doubt the High Court’s general jurisdiction is founded foremost under Article 165(3) of the Constitution. Article 165(3) (e) extends the High Court’s jurisdiction to

“any other jurisdiction, original or appellate, conferred on it by legislation”.

28. Derivatively, under s. 80 of the Civil Procedure Act (Cap 21) Laws of Kenya and Order 45 of the Civil Procedure Rules, the High Court is vested with jurisdiction to review, in prescribed circumstances, its own decision. It is not a general jurisdiction but a specific jurisdiction to be exercised where the factors indexed under Order 45 Rule 1 are proven. To succeed a litigant must bring himself within any one or a combination of the three factors set out under Rule 1. The definitive grounds run to the effect that the applicant needs to establish that there has been a discovery of new and important matter or evidence which after the exercise of due diligence was not within the applicant’s knowledge at the time the decree was made. The applicant may also rely on the ground that there has been an error or mistake apparent on the face of the record. Alternatively or additionally, the applicant may seek review on the basis of any “other sufficient reason”. The applicant must of course also move the Court expeditiously.

29. No doubt thus with the unambiguous and clear provisions of the Order 45, Parliament granted the jurisdiction and discretion to review but it is a power not to be exercised lightly. The discretion though unfettered is to be exercised judiciously upon established principles.

30. The principal policy reasons in play for delineating the applicable factors with regard to the scope of review is, in my view, the need to draw a line between the review jurisdictions on the one hand and the appellate jurisdiction on the other. Additionally, there is the inaptness of allowing a review by one judge of the decision of another of coordinate jurisdiction on the same material.

31. Another reason for limiting the review jurisdiction of the Court is the need to ensure finality to litigation. A general jurisdiction to review would open the field too wide to be re-traversed. Given that fairly few litigants who have lost in litigation will not be aggrieved, a second shot would not be too bad after all for the aggrieved : see the remarks of Miller J in In Re a Debtor [1993] 2 All ER 991 at 995.

332. Mr. Ayisi contended that the Plaintiff had moved the Court after an extended period of unexplained delay. Mr. Ayisi also contended that the Plaintiff’s application did not fall within the purview of Order 45 Rule 1 in so far as the review was pegged on alleged bias on the part of the learned judge (Hon.Farah Amin J). Mr. Oyatsi’s contention was that the Plaintiff had the option of lodging an appeal against the now impugned decision of 2 March 2016 or seeking to have it reviewed but the Plaintiff settled for the latter.

A question of delay

33. The event that prompted the review application was the decision of Farah J of 20 April 2017 declining the Plaintiff’s application to have the counter-claim dismissed for want of prosecution and also the 2nd Defendant’s application for review. Time must be taken to have started running from this date.

34. It was the dismissal of both applications which led the Plaintiff to reckon and deduce that the judge was biased. Thereafter the Plaintiff went hunting, for a copy of the learned judge’s ruling. It was not availed. All efforts apparently proved futile. The supporting affidavit filed in Court on 28 June 2017 addresses this fact. When the Plaintiff failed to get a copy of the 20 April 2017 ruling, the Plaintiff simply opted to file its application to review the orders of 2 March 2016.

35. I do not view it that the two month delay in filing the application was so inordinate and inexplicable as to rid the Court of its jurisdiction and discretion under Order 45. There was no inexcusable delay on the part of the Plaintiff following the decision of 20 April 2017.

Is bias “an error apparent on the face of the record”?

36. In a quick-fire answer to a question by the Court as to under what factor the Plaintiff’s application fell under Order 45, Mr. Oyatsi stated that there was an error apparent on the face of the record while adding that the Court always has a duty to ensure justice is done.

37. It may be needless to revisit what is an error apparent on the face of the record for the purposes of Order 45 suffice to point out though that the Courts have severally discussed the same.

38. In Muyodi v Industrial and Commercial Development Corporation & Another [2006] 1 EA 243, the Court stated as follows:

“ InNyamogo & Nyamogo -vs- Kogo (2001) EA 174this Court said that an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is real distinction between a mere erroneous decision and an error apparent on the face of 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 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 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.”(emphasis mine)

39. Clearly, in my view, a claim of bias invites a closer interrogation. It cannot be said to be so obvious as to constitute an error apparent on the record. Such a claim entails an act of ascertaining and balancing all the circumstances which have a bearing on the suggestion that the judge was biased. The Court then asks whether a fair minded informed observer (“FMIO”) availed of the circumstances and having considered the facts would conclude that there was a real possibility that the judge was biased. The Court is required to determine the facts which the observer would know and take into account and then, determine whether the FMIO would conclude on those facts that a real possibility of bias existed. This is an objective test: see for example Poster v Magill [2002] 2 WLR 37, Kimani vKimani [1995-98] 1 EA 134per Gicheru JA (as he then was) and Standard Chartered Financial Services Limited & 2 Others v Manchester Outfitters (Supra).

40. I am convinced that an allegation of bias is not like saying and hearing the word ‘Eureka’. Bias does not speak for itself unless there is actual bias. The Court has to do much more. Bias cannot constitute an error apparent on the face of the record.

Jurisdiction and bias as ground for review

41. Mr. Oyatsi submitted that this Court had jurisdiction to review its decision where bias was shown. Counsel asked the Court to be guided by the approach taken by the Court of Appeal in Standard Chartered Financial Services Ltd & Another –v- Manchester Outfitters (supra) where the Court of Appeal exercised its “residual jurisdiction to correct [an] injustice”. Mr. Ayisi, on the other hand, relied on the decision in Benjoh Amalgamated Limited & Another –v- Kenya Commercial Bank Ltd [2014]eKLR.

42. In both cases, the Court of Appeal affirmed its residual jurisdiction to review its decision where bias had been alleged and correct any injustice. I found both decisions helpful; especially in so far as they stressed that the residual jurisdiction could be invoked to correct an injustice and only in appropriate cases.

43. How then should the question as to whether injustice has been occasioned and whether the case is an appropriate one for invitation of the residual jurisdiction be answered? The answer must be a short one. It is: on the basis of the facts of each case. It must, secondly, be exercised where there is no other option to remedy the injustice or situation, it being the duty of the Court to see that no injustice is occasioned to a litigant.

44. In Benjoh Amalgamated Limited & Another v Kenya Commercial Bank Limited (supra)the question as to whether or not a Court can review its decision on the basis of an injustice or unfair procedure including bias, was considered. After reviewing various decisions from the United Kingdom, Singapore, U.S.A, Australia and Canada, the court stated as follows:

“[57] The jurisprudence that emerges from the case-law from the aforementioned jurisdictions shows that where the Court is of final resort, and notwithstanding that it has not explicitly been statutorily conferred with the jurisdiction to reopen a decided matter, it has residual jurisdiction to do so in cases of fraud, bias, or other injustice with a view to[sic] correct the same and in doing so the principles to be had regard to are, on the one hand, the finality principle that hinges on public interest and the need to have conclusiveness to litigation and on the other hand, the justice principle that is pegged on the need to do justice to the parties and to boost the confidence of the public in the system of justice. As shown in the various authorities, this is jurisdiction that should be invoked with circumspection and only in cases whose decisions are not appealable (to the Supreme Court).”

45. It is for the reason of ensuring that justice is done between the litigants and to ensure public confidence in the administration of justice that Courts within our jurisdiction and elsewhere in the commonwealth have consistently held even where there is no express statutory power of review (as under Section 80 of the Civil Procedure Act), that a Court has a residual power to reopen its decision where it is the Court of last resort to avoid real injustice. See Musiara Limited v William Ole Ntimama [2005] 1 EA 317and also R. v Bow Street Metropolitan Stipendiary Magistrate, Ex P Pinochet Ugarte (No. 2) [1999] 1 All ER 577.

46. I conclude that a Court has jurisdiction to review its decision where bias is alleged. To do so, it must be a court of last resort. The aggrieved litigant must have no other forum to seek to rectify the injustice. There must be no avenue for appeal. In such a case bias will , once proven, constitute “sufficient reason” as provided for under Order 45 Rule 1 of the Civil Procedure Rules.

47. In casu, the allegation of bias was a ‘stand alone’ ground in the application by review lodged by the Plaintiff. I have determined that allegations of apparent bias would not fall to be under the facet of errors apparent on the face of the record but sufficient reason. I have also determined that bias is not suitable for purposes of review unless it is raised before a court of last resort. This court is not a court of last resort. And, the Plaintiff’s application would fail for that reason.

48. One other point however still remains for consideration.

Issue estoppel

49. Though not taken up by any of the parties to these proceedings, the impact of the 2nd Defendant’s application filed on 8 April 2016 is critical to the instant motion.

50. The 2nd Defendant’s application was also an application for review. It sought to have the Court reopen, revisit and reconsider its decision of 2 March 2016. It sought to have the counter claim dismissed. The application was heard and dismissed. It was heard simultaneously with the Plaintiff’s application of 25 May 2016 which also sought to have the counter claim dismissed. Both applications were dismissed on 20 April 2017.

51. I would view it that the latter applications and the resultant decision of 20 April 2014 dismissing the applications gave rise to issue estoppel in relation to the instant application. It is evident that there is a commonality of parties, reliefs and issues in the two applications of 8 April 2016 and 25 May 2016 on the one hand and the current application on the other hand. Both sought review and dismissal of the counter-claim. They sought to vacate the orders of 2 March 2016. The Court (Hon. Farah Amin J) must be deemed to have fully considered the issues and it is not for this Court to determine whether she arrived at the correct decision. The principle of finality of litigation would stop any party (and this Court) from revisiting the same issue as to whether the counterclaim ought to be dismissed.

Conclusion and disposal

52. Without hesitation, I must state that the Plaintiff’s application raised pertinent questions. It touched on the concepts of decisional independence and judicial discretion. It touched on the concept of decisional consistency: How possibly may one arrive at two different decisions on the same issue? The questions raised ought to be answered to explain away the injustice or prejudice alleged by the Plaintiff .

53. The practice of the Court is however the law of the Court. I have found that an issue of bias however so founded should not constitute a ground for review unless the review application is before a court of last resort. This court has no remit to entertain the current application.

54. I am unable to venture further and consider the merits of the application. The application dated 27 June 2017 must fail for the foregoing reasons and it does. It is dismissed.

55. I decline to make any order as to costs; even as I dismiss the Plaintiff’s application.

Dated, signed and delivered at Nairobi this 1st day of November, 2017

J.L.ONGUTO

JUDGE