[2022] KEHC 14600 (KLR)

Kirinyaga Construction (K) Limited v Attorney General (Civil Case 885 of 2009) [2022] KEHC 14600 (KLR) (Commercial and Tax) (13 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14600 (KLR)

Republic of Kenya

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

Commercial and Tax

Civil Case 885 of 2009

WA Okwany, J

October 13, 2022

Between

Kirinyaga Construction (K) Limited

Plaintiff

and

Attorney General

Defendant

Ruling

1. The plaintiff herein, Kirinyaga Construction (K) Limited, filed the application dated September 7, 2021 seeking the following orders:-1. Spent2. That this Honourable court be pleased to review paragraph 79 of the judgement delivered by Hon lady Justice Nzioka on March 9, 2020 in which the learned judge mistakenly and erroneously records the plaintiff/applicant’s claim of idling costs as shown in its bundle of documents as only Kshs 38,871,071. 10 which sum only constitutes idle costs and mistakenly omits the idle cost of equipment shown as Kshs 1,337,391,594. 00 and therefore review the award at the said paragraph 79 by the additional sum of Kshs 1,337,391,594. 00/= being idling costs of equipment.3. That this Honourable Court be pleased to review Paragraph 82 of the judgement delivered by Hon justice Nzioka on March 9, 2020 in which the learned judge mistakenly and erroneously records that the claim for inflation as supported by the documents at pages 601 and 602 of the plaintiffs documents cannot be allowed as page 601 is completely illegible while the document at page 602 does not show any figure yet the record does not show the correct sum of costs due to inflation at page 601 of the plaintiffs bundle of documents as Kshs 245,134,057. 96 and the court be pleased to accordingly review the award of the said Paragraph 82 to Kshs 275,134,057. 96 being the costs due to inflation.4. That upon the review sought at prayer 2 and 3 above the decree issued by this court be appropriately rectified to accord with the judgment as reviewed.5. That the court be pleased to make any other order it deems mete and just in the circumstances.6. That the costs of this application be awarded to the plaintiff/applicant.

2. The application was supported by the affidavit of Joseph Muchoki Waigwa and is based on the following grounds:-1. That by a judgment delivered by Hon Justice Grace Nzioka on March 9, 2020 this court allowed the plaintiffs case.2. That upon careful and objective reading of the judgement in the underlying suit by Hon Justice Grace Nzioka on March 9, 2020 there is a mistake or an error apparent at paragraphs 79 and 82 of the said judgment and therefore there exists a mistake or error on the face of the record.3. That the said error is manifest from a reading of Paragraph 79 and 82 of the judgment of Hon Lady justice Grace Nzioka delivered on March 9, 20204. That on account of the said errors the court;a.In allowing the plaintiff/applicant’s claim on account of ‘idling costs ‘stated the same to be Kshs 38,871,071. 10 which was only the cost of idle labour and omits the cost of idle equipment shown as Kshs 1,337,391,594. 00 at page 538 of the plaintiffs bundle of documents cited by the learned judge at paragraph 79 of the subject judgment but omitted from her final pronouncement.b.In declining to award the plaintiffs claim for the costs due to inflation mistakenly did not have regard to the figure of costs due to inflation stated at page 601 of the plaintiff’s documents as Kshs 275,134,057. 96 and therefore did not award the same to the plaintiff.5. That the judgment and decree therefore ought to be reviewed and rectified6. That this court has the jurisdiction and mandate to review and correct the mistakes or errors on the face of the judgement as well as to rectify the decree issued prior to the said review7. That it is in the interests of justice that the mistake or error apparent on the face of the record be corrected so that the plaintiff/applicant may secure fruits of its judgment.

3. The respondent opposed the application through the replying affidavit sworn by Eng Samuel Omer who states that upon the delivery of the judgement the plaintiff and Kenya National Highways Authority (KENHA) entered into a consent wherein the plaintiff was on May 27, 2021 paid Kshs 897,669,285. 17 in settlement of the judgment. He further states that the plaintiffs claim for idle costs of equipment was considered by the court at paragraph 79 where it was held that the claim was not supported by evidence. He states that the claim under cost of inflation of Kshs 275,134,057. 96 is not tenable as the court examined the record and found that the plaintiff’s documents on page 602 was illegible.

4. It is the respondent’s case that the plaintiff has not demonstrated that there was any error apparent on the face of the record and further, that having consented to the variation of the impugned judgment, the plaintiff was precluded from seeking to review the said judgment. The respondent contends that the application is couched as an appeal as it seeks redress over claims that were not granted by the court.

5. Parties canvassed the application by way of written submissions which I have considered. The main issue for determination is whether the applicant has made out a case for the granting of orders for review.

6. Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules provide the framework and circumstances under which the court may exercise the power to review its decisions.

7. Section 80 of the Civil Procedure Act provides that: -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.'

8. Order 45(1) of the Civil Procedure Rules sets out the requirements for an application for review as follows:-'Any person considering himself aggrieveda)By a decree or order from which an appeal is allowed, but from which no appeal has been preferred; orb)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 review of judgment to the court which passed the decree or made the order without unreasonable delay'.

9. The instant application is premised on the ground that there is an error apparent on the face of the trial court’s judgment delivered on March 9, 2020. It was the applicant’s case that the learned judge made an error that is apparent at paragraphs 79 and 82 of the said judgment. The applicant contended that despite the fact that there was clarity on the issue of idle costs, the learned judge mistakenly omitted the sum of Kshs 1,337,391,594. 00 being the cost for idle equipment. The applicant further faults the learned judge for failing to award the applicant the sum of Kshs 275,134,057. 96 at paragraph 82 of the judgment.

10. A perusal of the impugned judgment reveals that that Nzioka J held as follows at paragraph 79 thereof: -'79. I have analyzed the said documents and find that as regards the claim on additional costs due to extended preliminaries, equipment and manpower, in the sum of Kshs 1,538,153,178. 68. the plaintiff relies on documents on pages 505 to 578. The analysis thereof reveals documents at pages 506 to 508 are letters from the ministry concerning deducted tax page 509 payment voucher of liquidated damages of Kshs 23,310,000, pages 510 to 514 costs due to insurance in the sum of Kshs 106,892,050, Pages 515 to 538, 539 days idling costs indicated at page 529 to be the sum of Kshs 38,871,071. 10, pages 539 to 540 shows photos of machines, pages 541 to 547 is a document entitled Intra Africa assurance company limited contractors all risk policy, pages 559 of 564 are correspondences in relation to council charges for stone extraction and processing operations and excavation of murram and a lease agreement on erection on construction plant and site office' finally pages 565 to 578 are correspondence in relation to the tax issues affecting the project. Therefore although the plaintiff claims for amount of Kshs 1,538,153,178. 68 the documents produced at pages 506 to 578 do not support the claim. The only amount supported is a claim for insurance in the sum of Kshs 106,892,050 and idling costs of Kshs 38,871,071. 10 totaling Kshs 145,763,121. 10 and that is the only sum that can be awarded.

11. In opposing the application, the respondent argued that the plaintiff’s claim for idle costs of equipment was considered at paragraph 79 of the judgment where the court held that the same was not supported by evidence. It was further submitted that the claim for cost of inflation of Kshs 275,134,057. 96 was found to be untenable after the court examined the record and found that the plaintiff’s documents at page 602 was illegible. The respondent argued that a re-examination of the evidence, as requested by the applicant, could only be done on appeal.

12. In Muyodi vs Industrial and Commercial Development Corporation & Another (2006) 1 EA 243, the Court of Appeal considered what constitutes a mistake or error apparent on the face of the record, and stated as follows:-'In Nyamogo & Nyamogo vs Kogo (2001) EA 174 this 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 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 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.'

13. InRepublic vs Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] eKLR the court expounded on the above principles and held that: -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 detailed examination.'

14. From the foregoing authorities, it is clear that an error apparent on record should be self-evident and not require an explanation to establish.

15. I have considered the timing of the application and the reasons advanced by the applicant in seeking the orders for review. I note that the applicant is aggrieved that the court did not award it Kshs 1,337,391,594 and Kshs 275,134,057. 96 being the costs due to inflation. The applicant therefore seeks orders to review the award so as to come up with an additional award of Kshs 1,612,525,651. 96.

16. It was not disputed that after the delivery of the impugned judgment, the parties herein, on May 27, 2021 entered into a consent in which they agreed to compromise the amount awarded in the judgement at Kshs 897,669,285. 17. My finding is that if indeed there were errors on the face of the said judgment, then the applicant ought to have raised them at the time of the compromise. I also find that margin between the amount of Kshs 897,669,285. 17 agreed upon during the compromise and the additional sum of Kshs 1,612,525,651. 96 is so huge that it could not have escaped the attention of the parties, especially the applicant, at the time they entered into the agreement.

17. I further note that the trial court carefully considered the documentary evidence presented by the parties before arriving at the award made in the judgment. The applicant is however, through the instant application, inviting this court to reconsider or re-evaluate the evidence afresh. My considered view is that such an undertaking will be akin to inviting this court to sit on appeal against the judgment/decision of a court of concurrent jurisdiction. I am guided by the decision in Pancras T Swai vs Kenya Breweries Limited [2014] eKLR where the Court of Appeal held that:-'In Francis Origo & Another vs Jacob Kumali Mungala (CA Civil Appeal No 149 of 2001 (unreported), the High Court dismissed an application for review because the applicants did not show that they had made discovery of new and important matter or evidence as the witness they intended to call was all along known to them and in any case, the applicants had filed appeal which was struck out before the filing of the application for review. This court stated:-'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. Once the appellants took the option of review rather than appeal they were proceeding in the wrong direction. They have now come to a dead end. As for this appeal, we are satisfied that the learned Commissioner was right when he found that there was absolutely no basis for the appellant’s application for review. We have therefore no option but to dismiss this appeal with costs to the respondent.'

18. I note that the present application is founded on the claim that the court erred in its examination of the evidence. Indeed, the application is based on the claim that evidence contained in some of the documents that the applicant produced at the hearing were erroneously not considered. The applicant is, through this application, calling upon the court to re-examine the bundle of documents that it had presented before the trial court in order to come up with a different outcome.

19. My finding is that the error cited by the applicant does not fall within the classification of errors on the face of the impugned judgment that would call for a correction through an application for review. My understanding of the expression ‘error apparent on the face of the record’ is that the error should be clear on the judgment itself such that the court is not required to look elsewhere or examine any other document in order to correct it. In the instant case however, the applicant referred this court to certain pages in the bundle of documents that it had produced before the trial court and claimed that the said pages had not been considered. This is to say that the applicant challenges or faults the court that tried its case for its analysis of the evidence presented before it and for allegedly failing to consider the documentary evidence produced before it. I find that in the circumstances of this case, the error, if any, can best be addressed through an appeal against the impugned decision and not an application for review.

20. I further note that the review sought by the applicant, if allowed, will result in an award of colossal sums of money that is double the sum awarded in the judgment thereby outstripping or overturning the initial award. Furthermore, it did not escape the attention of this court that the instant application was filed almost two years after the delivery of the impugned judgment and after the parties entered into a consent to vary the terms of the judgment which terms the respondent settled in full. Considering the timing of the present application, the amount of money involved and the consensual variation of the terms of the judgment, I find that instant application is afterthought and has not been brought in good faith.

21. For the above reasons, I find that the application dated September 7, 2021 is not merited and I therefore dismiss it with no orders as to costs.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 13TH DAY OF OCTOBER 2022. W. A. OKWANYJUDGEIn the presence of:-Mr. Bett for Kamau for defendant.Court Assistant- Sylvia