[2022] KEHC 16169 (KLR)

Khalsa Motors (2005) Ltd & another v Pravinkant Vadgama (Commercial Case E041 of 2021) [2022] KEHC 16169 (KLR) (Commercial and Tax) (9 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16169 (KLR)

Republic of Kenya

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

Commercial and Tax

Commercial Case E041 of 2021

A Mabeya, J

December 9, 2022

Between

Khalsa Motors (2005) Ltd

1st Appellant

Hemal Kishor Kotecha

2nd Appellant

and

Pravinkant Vadgama

Respondent

Ruling

1. This ruling is in respect of an application dated 14/2/2022 by the appellants. It was brought under order 45 rule 1 of the Civil Procedure Rules, 2010 and section 3A of the Civil Procedure Act.

2. The application sought review of the orders made on 14/1/2021 to allow the applicant to deposit half of the decretal amount in the joint interest earning account and weekly installments of Kshs 200,000/- until payment in full. The application was supported by the affidavit the 2nd appellant Hemal Kotecha.

3. The applicants’ contended that the court had ordered them to pay half of the decretal sum ofKshs3,157,274/- into a joint interest earning account. That the advocates opened the said account but the applicants were unable to pay the amount ordered due to agency notices issued by KRA to their bank accounts. They proposed to pay the decretal amount in installments of Kshs 200,000/- per week until payment in full.

4. The application was opposed. The respondent filed grounds of opposition dated 21/2/2022 stating that the application was an abuse of the court process. It was meant to delay the case and it offended the provisions of section 7 of the Civil Procedure Act as the same issues had been raised in the application dated 31/5/2021 determined by the ruling dated 14/1/2022.

5. The application was canvassed by written submissions which I have considered.

6. It was submitted for the applicants that the court had the jurisdiction to review its orders to correct an error on the face of the record or for any other sufficient reason. That on 24/2/2022, the court had directed them to pay a sum of Kshs 500,000/- by close of business and Kshs 200,000/- every Friday. This they had complied with. That the proposal they were now giving was reasonable as it would allow them to pay half of the decretal sum before the hearing and determination of the appeal.

7. The respondent submitted that the application was res judicata as the same issues had been raised in the application dated 31/5/2021. Counsel further submitted that the application did not meet the threshold for review.

8. I have carefully considered the application, the response and the submissions by the parties. The respondent raised the issue of res judicata which should be considered first.

9. Section 7 of the Civil Procedure Act which provides;“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”

10. I have seen both applications. The present application only seeks review of the orders made earlier. The court has not previously dealt with a similar application as contended by the respondent. Therefore, that objection fails.

11. On review, order 45 order 45 rule 1(1) of the Civil Procedure Rulesis clear that this can only be granted where there is an error apparent on the face of an order, discovery of new evidence that was either unavailable or could not be obtained by an applicant at the time of making the order or for sufficient reason.

12. In Paul Mwaniki Vs National Hospital Insurance Fund Board of Management [2020] e KLR, the court stated: -“i.A court can review its decision on either of the grounds enumerated in order 45 rule 1 and not otherwise.ii.The expression "any other sufficient reason" appearing in order 45 rule 1 has to be interpreted in the light of other specified grounds.iii.An error which is not self-evident and which can be discovered by a long process of reasoning cannot be treated as an error apparent on the face of record justifying exercise of power under section 80. iv.An erroneous order/decision cannot be corrected in the guise of exercise of power of review.v.A decision/order cannot be reviewed under section 80 on the basis of subsequent decision/judgment of a coordinate or larger bench of the tribunal or of a superior court.vi.While considering an application for review, the court must confine its adjudication with reference to material, which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent.vii.Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court/tribunal earlier.viii.A mistake or an error apparent on the face of the record means a mistake or an error, which is prima-facie visible and does not require any detail examination. In the present case the petitioner has not been able to point out any error apparent on the face of the record.ix.Section 80 of the Civil Procedure Act provides for a substantive power of review by a civil court and consequently by the appellate courts. The words occurring in section 80 mean subject to such conditions and limitations as may be prescribed thereof and for the said purpose, the procedural conditions contained in order 45 rule 1 must be taken into consideration. Section 80 of the Civil Procedure Act does not prescribe any limitation on the power of the court, but such limitations have been provided for in order 45 rule 1. ’

13. The present application seeks review on the ground of any other sufficient reason. The issue therefore is whether the applicant has demonstrated sufficient cause to warrant this courts discretion.

14. In Pancras T Swai v Kenya Breweries Limited [2014] eKLR, the court quoted with approval the case of Wangechi Kimata & Another Vs Charan Singh(CA No 80 of 1985) (unreported) wherein it was held that: -“any other sufficient reason need not be analogous with the other grounds set out in the rule because such restriction would be a clog on the unfettered right given to the court by section 80 of the Civil Procedure Act; and that the other grounds set out in the rule did not in themselves form a genus or class of things which the third general head could be said to be analogous.”

15. In its ruling of 14/1/2022, the court granted a stay of execution pending appeal on condition that the applicants were to deposit half the decretal sum in a joint interest earning account in the names of the advocates for the parties. It is those conditions which they now want varied.

16. In Arun C Sharma vs Ashana Raikundaliat/aRairundalia & Co Advocates 2014 eKLR, the court stated that: -“‘The purpose of the security needed under order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. It is not to punish the judgment debtor...civil process is quite different because in civil process the judgment is like a debt hence the applicants become and are judgment debtors in relation to the respondent. That is why any security given under order 42 rule 6 of the Civil Procedure Rules acts as security for due performance of such decree or order as may ultimately be binding on the applicants. I presume the security must be one which can serve that purpose.’

17. The reasons advanced by the appellants for failure to pay the security is inability to raise the amount in lump sum due to pending agency notices. The rationale of security is to ensure that no party would be left worse off by an order of the court.

18. In this case, I find no basis for review of the ruling and orders of 14/1/2022. I find no merit in the application and the same is dismissed with costs to the respondent.It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 9TH DAY OF DECEMBER, 2022. A. MABEYA, FCIArbJUDGE