[2023] KEHC 19538 (KLR)

Kibuchi & Company Advocates v Kenindia Assurance Company Limited (Miscellaneous Application 701 of 2018) [2023] KEHC 19538 (KLR) (Civ) (29 June 2023) (Ruling)

Neutral citation: [2023] KEHC 19538 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Miscellaneous Application 701 of 2018

CW Meoli, J

June 29, 2023

Between

Kibuchi & Company Advocates

Applicant

and

Kenindia Assurance Company Limited

Respondent

Ruling

1. For determination is the motion dated 17. 05. 2022. The motion was prompted by the following events. Kibuchi & Co. Advocates (the Applicant) filed a Bill of Costs dated December 14, 2018 against Kenindia Assurance Company Limited (the respondent). When the bill of costs came up for taxation, the Respondent raised a preliminary objection on grounds inter alia that the bill was statute-barred, the same having been filed outside the limitation period stipulated in section 4(1) of the Limitation of Actions Act. The preliminary objection was disposed of by way of written submissions and by its ruling delivered on 05. 05. 2022 the court found merit in and upheld the preliminary objection, and as a consequence struck out with costs, the Applicant’s bill of costs.

2. The Applicant has now moved this court vide the present motion seeking inter alia that the decision of the court dated 05. 05. 2022 be reviewed and set aside and the Applicant’s bill of costs dated 14. 12. 2018 be reinstated as competent for taxation. The motion is expressed to be brought under section 3A of the Civil Procedure Act, Order 45 Rules 1, 2 & 3 and Order 51 Rule 1 of theCivil Procedure Rulesamong others. On grounds on the face of the motion as amplified in the supporting affidavit sworn by Patrick Kibuchi.

3. The gist thereof is that the said court ruling of 05. 05. 2022 was obtained through a deliberate concealment and or non-consideration of the existence of a final reminder on legal fees to the Respondent on March 2013 which resulted in a fresh accrual of rights that had earlier on accrued in September 2007 when the primary suit was concluded; that the said final reminder was duly received and acknowledged by the Respondent as an admission of being indebted to the Applicant; and hence a fresh accrual of the Applicant’s right so that the statutory limitation period started running from 25. 03. 2013 and would thus lapse on March 25, 2019. Consequently, the bill of costs having been filed on December 14, 2018, was well within the limitation of action period of six (6) years and did not warrant deflection by way of the preliminary objection.

4. Moreover, under section 23 (3) of the Limitation of Actions Act, the upholding of the preliminary objection permitted the Respondent to unfairly deprive the Applicant of its lawful earned legal fees. Ultimately therefore, that there was a mistake or error apparent on the face of the record, and the court ought to review it decision to prevent a miscarriage of justice.

5. In response, the respondent filed grounds of opposition dated June 10, 2022. To the effect that the motion for review is fatally defective, untenable and incompetent and contrary to Order 45 Rule 1 of theCivil Procedure Rules in that the orders against which the review is sought have not been specifically quoted or brought before the honorable court; that the Applicant in ground 9 and also paragraph 20 of their supporting affidavit depose that there has been miscarriage of justice in the matter which complaint can only be ventilated on appeal, this court being functus officio ; that the Applicant is misleading the court and distorting facts in his ground 8b in the motion and paragraph 11 of their supporting affidavit by implying and/or stating that the ruling was obtained through a deliberate concealment of the existence of the Applicant’s final reminder to the Respondent in December 2013.

6. Further, that the alleged reminder not having been produced by the Applicant denied the court the opportunity to peruse its contents; that the Applicant does not specifically plead or allege any error apparent on the face of the record, nor does disclose any sufficient cause or reason to justify review and the motion is intended to defeat the process of justice; and the Applicant is thus not entitled to the orders sought.

7. The motion was canvassed by way of written submissions. Restating the history of the matter, counsel for the Applicant cited the provision of section 80 of the Civil Procedure Act, Order 45 Rule 1 of theCivil Procedure Rules and the decision inRobert Tom Martins Kibisu v Republic [2013] eKLR to contend that there was an error apparent on the face of the record arising from the court’s failure to consider the final demand letter dated March 25, 2013 issued by the Applicant to the Respondent.

8. That the omission was a serious error in light of the provisions of section 23 of the Limitation of Action Act, regarding the fresh accrual of the Applicant’s rights. In response to the respondent’s position that the motion lacks merit, counsel relied on the decision in Thomas Owen Ondieki v National Bank of Kenya [2011] eKLR to contend that the ruling sought to be reviewed was by this court and the motion was filed in good faith to address a grievance arising from the said ruling. Therefore, the motion is not fatally defective as posited by the Respondent and the court ought to review its decision.

9. Submitting on whether it is just to grant the motion, he asserted that the motion was filed timeously upon delivery of the ruling and that the final reminder having been served upon the Respondent on 25. 03. 2013 and thereafter duly acknowledged, resulted in a fresh accrual of rights pursuant to section 23 of the Limitation of Action Act. The decisions in Kibuchi & Co. Advocates v Kenindia Assurance High Court Misc. Appl. No. 709 & 711 of 2019 (unreported) were called to aid in that regard. Regarding the court’s power to address its own miscarriage of justice, counsel relied on the Indian decision in Ajit Kumar Rath v State of Orisa &others, 9 Supreme Court Cases 596 at page 608, Nuh Nassir Abdi v Ali Wario & 2others[2013] eKLR and Pancras T. Swai v Kenya Breweries Limited [2014] eKLR. To support the submission that the grounds for review fall within the ambit of the provisions of Order 45 of the Civil Procedure Rules, the Applicant having raised the ground of error on the face of the record as elaborated in the supporting affidavit. In conclusion, the court was urged to allow the motion as prayed.

10. On the part of the respondent, counsel anchored his submissions on the decisions in Ajit Kumar Rath (supra) and Nasibwa Wakenya Moses v University of Nairobi &another [2019] eKLR to contend that firstly that there is no discovery of a new matter or evidence as the asserted final reminder letter was always in the possession of the Applicant but was not presented before the court for its benefit. Secondly, it was argued that the applicant’s contention that there was an error apparent on the face of the record arising from the court overlooking the existence of the final reminder is a ground for appeal and not review. That the issue requires extraneous re-appraisal of evidence to verify its correctness, which exercise can only be carried out by an appellate court and not through review.

11. Thirdly, counsel stated that no sufficient grounds for review have been advanced as the court’s misconstruing of law or facts cannot be a ground for review. In conclusion, citing Section 4(1) the Limitations of Actions Act and the decision in Abincha & Company Advocates v Trident Insurance Company Limited[2013] eKLR the respondent reiterated that the bill of costs herein is time barred and therefore the applicant’s motion lacks merit and ought to be dismissed with costs.

12. The court has considered the material canvassed in respect of the motion. The applicant’s motion before this court is anchored on the provisions of Order 45 (1) of the Civil Procedure Rules which provides that: -“(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.”

13. The review motion appears to be anchored on the ground of error or mistake apparent on the face of the record and possibly, any other sufficient reason as envisaged in Order 45 Rule 1 Of the Civil Procedure Rules. The underlying factual issue raised by the Applicant being that this court’s ruling was obtained through a deliberate concealment and failure to consider the final reminder on legal fees allegedly sent to and acknowledged by the respondent in March 2013. Giving rise to a fresh accrual of rights with pursuant to section 23 of the Limitation of Actions Act. This court in its ruling rendered on May 5, 2022 expressed itself as hereunder in respect of the respondent’s preliminary objection:-“12. The judgment in the primary suit in respect of which the Applicant had received instructions from the Respondent to defend having been entered on September 17, 2007the Applicant only filed the bill of costs on December 20, 2018, some eleven years after the primary suit was concluded. sections 23 (3) and 24 (1) of theLimitations Act which the Applicant has called to his aid are of no avail in this case. An acknowledgement of debt as envisaged in the sections and pursuant to the provisions of 25(5) is the equivalent of an admission of debt. According to Black’s Law Dictionary, Tenth Edition an acknowledgement of debt is:“Recognition by a debtor of the existence of a debt. An acknowledgement of debt interrupts the running of prescription”.13. The Applicant’s submission in this regard was that by the fact of the Respondent “acknowledging the receipt of the letter dated above (i.e. letter dated 28th January 2013), there was a fresh accrual of the right of action against the Respondent…”. This proposition is contrary to the clear provisions of sections 23, 24 and 25 of the Limitation of Actions Act which do not contemplate an act of acknowledgement of receipt of a demand letter as an acknowledgement of the debt claimed by such letter. In my view, the proposition conjures absurd outcomes where a mere acknowledgement of receipt of a demand letter would be construed as synonymous with an acknowledgment of the debt claimed by such letter, and to provide a defence against the plea of limitation.14. The facts in the case of Shah & Parekh v Kenindia Assurance Company Limited cited by the Applicant are distinguishable from those in the instant matter, in that in the former case, an acknowledgement of debt in keeping with section 23(3) and 24(1) and (2) of the Limitation of Actions Act had been communicated in writing by the client to the Advocate and payment made on the acknowledged debt. The Applicant cannot rely on that decision in this instance and the argument that a fresh cause of action had accrued in 2013 therefore falls flat on its face.15. In the result, the court finds that the preliminary objection raised by the Respondent has merit and it is hereby upheld……” (sic)

14. In Jason Ondabu t/a Ondabu & Company Advocates & 2 others v Shop One Hundred Limited [2020] eKLR the Court of Appeal stated that an application for review, involves exercise of judicial discretion. One of the numerous decisions discussing the principles applicable in an application of this nature is by Okwengu JA inAssociated Insurance Brokers v Kenindia Assurance Co. Ltd [2018] eKLR, where the Court of Appeal pronounced itself as follows: -“It is clear that Order 45 rule 1(1) of the Civil Procedure Rules provides that a mistake or error apparent on the face of the record is one of the grounds upon which an application for review of a decree or order can be granted. In National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR, this Court had this to say regarding a review arising from a mistake or error apparent on the face of the record:“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 a 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 proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review.” (Emphasis added)In Nyamogo and Nyamogo Advocates v Kogo [2001]1 E.A. 173 this Court further explained an error apparent on the face of the record as follows:“An error apparent on the face of the record cannot be defined precisely and 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 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 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 was also possible. Mere error or wrong view is certainly no ground for a review although it may be for an appeal.”

15. Further, in Multichoice (Kenya) Ltd v Wananchi Group (Kenya) Limited & 2others[2020] eKLR the Court of Appeal held that:“It bears emphasizing that the phrase "mistake or error apparent" by its very connotation conveys the fact that the error envisaged is one which is evident per se from the record and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. It is prima-facie visible. It must relate to an error of inadvertence, one which strikes one on merely looking at record. An apparent error on the face of the record has been described in the most simplified manner by the Tanzania Court of Appeal adopting with approval commentaries by Mulla, Indian Civil Procedure Code, 14th Edition pg 2335-36 as follows:“The courts in India have for many years had to consider what is constituted by "an error apparent on the face of the record" in the context of 0. 47, r. 1 of the Code of Civil Procedure and we think their opinions are of immense relevance. We treat for this purpose as synonymous the expressions "manifest" and "apparent". The various opinions are conveniently brought together in MULLA, 14th ed., pp. 2335-36 from which we desire to adopt the following. An error apparent on the face of the record must be such as can be seen by one who runs and reads, that is, an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on points on which there may conceivably be two opinions [State of Gujarat v. Consumer Education & Research Centre (1981) AIR Guj. 223]... But it is no ground for review that the judgment proceeds on an incorrect exposition of the law [Chhajju Ram v. Neki(1922) 3 Lah. 127]...

16. The grounds for review stipulated in Order 45 Rule 1 are to be read disjunctively with the limb providing for review “for any other sufficient reason”. See Wangechi Kimita &another v. Mutahi Wakibiru(1982-88) 1 KAR 977, and The Official Receiver and Liquidator v Freight Forwarders Kenya Limited [2000] eKLR .

17. What the court must determine is whether the applicant has demonstrated an error or mistake apparent on the face of the record or any other sufficient ground to warrant the review of this court’s earlier decision. Drawing guidance from the dicta in National Bank of Kenya Ltd (supra), it is evident ex facie that in its ruling the court exhaustively addressed the Applicant’s present contestation canvassed in the hearing of the preliminary objection. This court’s reasoned conclusion is that the said finding on the issue, now raised again in the present application by the Applicant as an error apparent on the face of the record, does meet the muster in the foregoing respect.

18. Secondly, and as rightly argued by the respondent, the letter dated March 25, 2013 that purportedly led to a fresh accrual of rights was not produced for this court’s benefit. The asserted final letter of demand whose contents are undisclosed was by the Applicant to the Respondent, and not the other way around. Whether it met the requirements of section 23 of the Limitation of Actions Act is unknown. Be that as it may, the court in its ruling addressed the issue of the Applicant’s final demand letter to the Respondent. Consequently, the court is not convinced that an error apparent on the face of the record or a sufficient reason for review has been advanced by the Applicant.

19. This court having substantively pronounced itself on issues of fact and law with respect to the applicant’s argument that a fresh accrual arose upon receipt of the letter dated January 28, 2013, must agree with the Respondent’s submission that the Applicant’s objection belongs to an appeal rather than a review motion. The Court of Appeal in Solacher v Romantic Hotels Limited & another (Civil Appeal 167 of 2019) [2022] KECA 771 (KLR) cited with approval the decision of Bennett J in Abasi Belinda v Frederick Kangwamu andanother [1963] EA p.557 to the effect that:“A point which may be a good ground of appeal may not be a good ground for an application for review, and an erroneous view of evidence or of law is not a ground for review, though it may be a good ground for appeal.”

20. It is therefore the Court’s considered view that the Applicant’s motion is without merit and it is hereby dismissed with costs to the Respondent.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 29THDAY OF JUNE 2023. C.MEOLIJUDGE