[2022] KEHC 10723 (KLR)

Kuria v Njoroge & 2 others (Miscellaneous Civil Application E052 of 2021) [2022] KEHC 10723 (KLR) (Civ) (7 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10723 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Miscellaneous Civil Application E052 of 2021

CW Meoli, J

June 7, 2022

Between

Eunice Muthoni Kuria

Applicant

and

Phyllis Wangari Njoroge

1st Respondent

Margaret Wanjiru Njoroge

2nd Respondent

Family Bank Limited

3rd Respondent

Ruling

1. The events leading to the motion for determination dated February 26, 2021 are as follows. On February 10, 2021 Eunice Muthoni Kuria (hereafter Applicant) contemporaneously filed a miscellaneous cause and motion dated February 4, 2021. The suit was seeking judgment against Phyllis Wangari Njoroge, Margaret Wanjiru Njoroge and Family Bank Limited (hereafter 1st, 2nd, and 3rd Respondent/Respondents) by way of restitution of Kshs 401,000/- by the Respondents to the Applicant; damages for unjust enrichment; a permanent injunction restraining the Respondents regarding the sum of Kshs 401,000/- in their possession; and costs of the suit. The motion contains seven substantive prayers all cumulatively seeking the restitution of the sums above to the Applicant and orders that the said monies held in the 3rd Respondent Bank be removed to a specified account in Development Bank.

2. The 1st and 3rd Respondents filed their respective responses to the motion. When the motion came up for inter-partes hearing on February 24, 2021, the court sought clarification from the Applicant as to why the suit was filed as a miscellaneous cause and whether the funds in dispute were the property of Hotstar Limited as the pleadings before the Court appeared to indicate. Counsel for the Applicant having confirmed that indeed the funds in question belonged to Hotstar Ltd, oral representations were made by the counsel for the 1st and 3rd Respondents. Whereupon counsel for the Applicant sought to withdraw the cause with no orders as to costs. This court marked the suit as withdrawn with costs, stating that costs follow the event. That however was not the end of the matter.

3. The Applicant subsequently filed the motion dated February 26, 2021 seeking that the court be pleased to vacate and set aside the orders on costs made on February 24, 2021 and that “the same to operate as a stay of execution pending hearing and determination of the application” (sic). The motion is expressed to be brought inter alia under Section 1A, 1B, 3A, and 27(1) of the Civil Procedure Act (CPA), and Order 10 Rule 11 of the Civil Procedure Rules (CPR) and is based on 24 grounds on the face of the motion, and as amplified in the supporting affidavit sworn by Mwaura Kelvin Karuga, counsel having conduct of the matter on behalf of the Applicant.

4. The affidavit is to the effect that the court ought to have taken into consideration the circumstances of the case, but it failed to appreciate that the litigants herein save for the 3rd Respondent are members of the same family who are embroiled in a feud in the distribution of assets of the estate of the late Eliud Njoroge Kuria. That the court ought not to have made an order awarding costs to the Respondents but rather should have ordered the same to be in the cause, especially since the Applicant had by filing the suit sought to mitigate the damage arising out of unjust enrichment by the 1st Respondent. Counsel goes on to depose that the Applicant is greatly prejudiced by the orders of this court issued on February 24, 2021 because on the strength of the said orders, the 1st Respondent had proceeded to serve the Applicant with a bill of costs.

5. It is further deposed that the 3rd Respondent in its response to the initial motion by the Applicant had not sought to have the Applicant’s motion dismissed, struck out with costs or at all, but it simply prayed to be discharged as a party from the suit and therefore the court’s award of costs greatly prejudiced the Applicant. Counsel asserts that had this court considered that fact, the 1st Respondent’s grounds in opposition to the motion dated February 4, 2021, and the matter in its entirety, it would likely not have awarded costs. That the Applicant’s counsel chose to follow the court’s guidance to withdraw the matter and the mistakes of counsel ought not to be visited upon the innocent litigant. In conclusion counsel asserted that substantial loss may result unless stay orders are granted.

6. The 1st Respondent opposed the motion through grounds of opposition dated April 28, 2020. To the effect that the application is premised on the provisions of Order 10 Rule 11 of theCivil Procedure Rules which relates to the setting aside of a judgment entered as a consequence of non-attendance or failure to enter appearance or defence within the stipulated time and therefore inapplicable in the instant case; that the application is in reality an application to review the orders of this court but it does not meet the threshold for review of the court’s orders; that the application is an attempt by the Applicant to re-litigate spent issues following the withdrawal of her suit; that the application offends Section 27 of the Civil Procedure Act which stipulates that costs follow the event and are awarded in the discretion of the court and hence the motion ought to be disallowed.

7. The 3rd Respondent equally opposed the motion on the following grounds. First, that as drawn, the motion is bad in law, misconceived, incompetent, unwarranted, ill-advised, and frivolous and should be dismissed in limine. Further that, the law grants the court unfettered discretion to award or withhold the award of costs as exercised herein in the awarding of costs to the 1st and 3rd Respondent who were the successful parties following the withdrawal of the suit; that the 3rd Respondent in its replying affidavit sworn by one Nelly Wambui Ng’ang’a, had opposed the Applicant’s notice of motion dated February 4, 2021 on grounds that the 3rd Respondent was not a necessary party in the proceedings and ought not to have been enjoined to the cause as it had no interest in the monies which were the subject of the suit; and that in any event, no reasonable cause of action was disclosed in the cause against the 3rd Respondent.

8. That upon reading and considering the motion and responses thereto, and upon hearing the oral submissions of all parties, the court had directed that the suit be withdrawn, and awarded costs of the suit to the 1st and 3rd Respondents, in accordance with the general rule that costs should be awarded to the successful party, in the absence of demonstration of good grounds for departing therefrom. The grounds further state that the Applicant had not demonstrated such grounds; that the 3rd Respondent being unnecessary party to this suit was compelled to incur the burden of unnecessary litigation costs in instructing counsel and filing its response to the Applicant’s motion and the award of costs was both fair and just; that there is no requirement that the court may only exercise its discretion to award costs where express pleas are made by the parties; and that the motion by the Applicant is intended to delay the enforcement of the order for costs . Finally, that the motion should be dismissed with costs to the 1st and 3rd Respondent.

9. The motion was canvassed through skeletal written submissions and oral highlighting. Counsel for the Applicant while citing the decision in Samuel Kamau Macharia & Another v Kenya Commercial Bank & 2 Others[2012] eKLR and the case of Motor Vessel “Lillian S” v Caltex Oil (K) Ltd [1989] submitted that this court possessed original jurisdiction to entertain the motion by dint of Article 165(1) & (3) of the Constitution. The court was urged to peruse the ruling of Majanja J in Misc. Application No E1305 of 2020 Hotstar Investments Limited v Muigai Commercial Agencies before deciding on the instant motion. It was asserted that the parties herein were members of one family; that the court should not have made an order for payment of costs, that the order is unjust and amounts to perpetuating an illegality; and that the Respondents will not be prejudiced if the motion is allowed. Counsel asserted that the motion was not one for review of the court’s orders on costs.

10. With regard to the 1st Respondent’s grounds of opposition, counsel for the Applicant cited a host of decisions among them Civil Case No 17 of 2014 Cecilia Karuru Ngayu v Barclays Bank of Kenya & Credit Reference Bureau Africa Ltd, Rosalina Njeri Macharia v Daima Bank Limited[2012] eKLR,Kay Constructions Limited v Eco Bank Kenya Ltd & 6 Others [2015] eKLR,Lebavben Products v Alexander Films (SA) (PTY) Ltd 1957 (4) SA 225 (SR),Jasbir Singh Rai & Others v Tarcholan Rai & 4 Others [2014] eKLR and Safaricom Ltd v Ocean View Beach Hotel Limited & 2 Other Civil Application 377 of 2009. He argued that the provisions of Order 10 Rule 11 CPRare applicable in this instance and that this court may set aside or vary judgment and any consequential orders upon such terms as are just; that the 1st Respondent’s objection in that regard is misguided as the application is not one for review but for the setting aside of orders of the court and premised on distinct legal principles not applicable in an application for review; and that the motion was not an attempt to re-litigate spent matters . Counsel contended that the court had discretion in awarding costs, but the discretion must be exercised judicially, and that the court is bound by the injunction in Section 1A, 1B & 3B of the Civil Procedure Act to facilitate the just, expeditious and affordable resolution of civil disputes. He relied on Kuloba J’s Judicial Hints on Civil Procedure, 2nd Ed., Pg. 99.

11. Addressing the 3rd Respondent’s grounds in opposition to the motion, counsel for the Applicant argued that generally the right of a party to discontinue a suit or withdraw his claim cannot be questioned. Referring to Order 25 of the Civil Procedure Rules and the decision in Constantine Mwikamba Mghenyi v Institute of Certified Public Accountants of Kenya [2017] eKLR he submitted that the principle that costs follow the event should not to be used to penalize the losing party but rather to compensate a successful party for the trouble taken in prosecuting or defending a matter, and that in this instance, the cause was withdrawn and not prosecuted. The court was urged to allow the motion.

12. Counsel for the 3rd Respondent on his part anchored his submissions on several decisions including Republic v Rosemary Wairimu Munene, Ex-Parte Applicant v Ihururu Diary Farmer’s Co-operative Society Ltd – JR App No 6 of 2014, Party of Independent Candidates of Kenya v Mutula Kilonzo & 2 Others, Canyon Properties Limited & 3 Others v Eliud Kipchirchir Bett & 2 Others [2017] eKLR, Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others[2014] eKLR,Jasbir Singh Rai (Supra) and Republic v Advocates Disciplinary Tribunal Ex Parte Apollo Mboya [2019] eKLR. He took the position that it is trite that costs follow the event. He reiterated that Order 10 Rule 11 CPRas cited by the Applicant is inapplicable to the instant matter and the motion ought to be dismissed with costs. The 1st Respondent did not file submissions.

13. The Court has considered the matters canvassed in respect of the motion. Order 10 of the Civil Procedure Rules invoked in the motion bears the title “Consequences of non-appearance, default of defence, and failure to serve” and provides for the entry of default judgment and procedure for the setting aside of such judgment. The motion under consideration is expressed to be specifically anchored on among others, the provisions of Order 10 Rule 11 of the Civil Procedure Rules which provides that:“Setting aside judgment [Order 10, rule 11. ]Where judgment has been entered under this Order the court may set aside or vary such judgment and any consequential decree or order upon such terms as are just”.

14. The above provisions are inapplicable in this instance for the several reasons. First, no default judgment as contemplated in Order 10 CPRwas entered in this matter during the proceedings of February 24, 2021. What happened during the said proceedings is that the suit was withdrawn before the hearing, as provided for in Order 25 Rule 1 of the Civil Procedure Rules. Although no formal notice of withdrawal was filed, counsel for the Applicant applied orally for withdrawal of the suit upon the court raising issues touching on the competence of the suit. So that, even if the order for costs issued on that date amounted to a judgment for costs as envisaged by Order 25 Rule 3 CPR, the said order was a final order, given after hearing both parties.

15. Order 25 Rule 3 of the CPRdoes not appear to contemplate any such hearing by the registrar before entry of judgment for costs and neither does Order 25 provide for the varying or setting aside of an order made thereunder. Indeed, an appeal lies from an order made under Rule 3 with leave of the Court, by virtue of the provisions of Order 43 Rule 1 of the CPR. Where a formal notification of withdrawal of a suit is made pursuant to Rule 1, Rule 3 of Order 25 of theCivil Procedure Rules provides for the entry of judgment for costs in the following terms:“Costs [Order 25, rule 3. ]Upon request in writing by any defendant the registrar shall sign judgment for the costs of a suit which has been wholly discontinued, and any defendant may apply at the hearing for the costs of any part of the claim against him which has been withdrawn.”

16. The 1st and 3rd Respondents had prior to the withdrawal of the suit entered appearance and filed responses to the motion dated February 4, 2021 and on February 24, 2021 addressed the court regarding the competence of the suit after it became apparent that the funds which were the subject of the cause and motion belonged to a company known as Hotstar Limited, whereas the suit was brought by the Applicant in her personal capacity. The court indicated, in allowing withdrawal of the cause and awarding costs, that costs followed the event.

17. The Applicant’s counsel has severally stated that his motion is not one for review under Order 45 Rule 1 CPR. And since it is neither an application contemplated under Order 10 Rule 11 nor Order 25 of the Civil Procedure Rules, the court has difficulty in discerning the legal anchor thereof. Having looked at the lengthy grounds in support of the motion, the supporting affidavit and arguments raised by the Applicant, the Court has concluded that the motion is no more than a disguised appeal from the entire order made on June 24, 2021, regarding the withdrawal of the cause and order for costs.

18. The court in exercise of its discretion donated by section 27(1) of the Civil Procedure Act determined that the 1st and 3rd Respondents were in the circumstances of the case entitled to costs in respect of the withdrawn cause. It is too late in the day for the Applicant to furnish fresh material and to raise arguments concerning the exercise of the court’s discretion that were not canvassed during the withdrawal proceedings, as she has attempted to do by her application. Concerning the merits of the order of February 24, 2021, this court is functus officio and declines the Applicant’s tacit invitation to sit on appeal on its own decision by considering the merits of the motion before it.

19. In Telkom Kenya Limited v John Ochanda [suing on his own behalf and on behalf of 996 employees of Telkom Kenya Limited] [2014] e KLR the Court of Appeal considered the principle of functus officio and exceptions thereto. The Court observed that:“Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon. It is a doctrine that has been recognized in the common law tradition from as long ago as the latter part of the 19th Century. In the Canadian case of Chandler v Alberta Association Of Architects [1989] 2 SCR 848, Sopinka J traced the origins of the doctrines as follows (at p 860);“The general rule that a final decision of a court cannot be re-opened derives from the decision of the English Court of Appeal In re St Nazaire Co, [1879], 12 Ch D 88. The basis for it was that the power to rehear was transferred by the Judicature Acts to the appellate division. The rule applied only after the formal judgment had been drawn up, issued and entered, and was subject to two exceptions:1. Where there had been a slip in drawing it up, and,2. Where there was an error in expressing the manifest intention of the court. See Paper Machinery Ltd v JO Rose Engineering Corp., [1934] SCR 186. ”

20. The Court further stated that:“The Supreme Court in Raila Odinga v Iebc cited with approval an excerpt from an article by Daniel Malan Pretorius entitled, “The Origins of the Functus Officio Doctrine, with Special Reference to its Application in Administrative Law” [2005] 122 SALJ 832 in which the learned author stated;“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter...The [principle] is that once such a decision has been given, it is (subject to any right of appeal to superior body or functionary) final and conclusive. Such a decision cannot be reviewed or varied by the decision maker….”The doctrine is not to be understood to bar any engagement by a court with a case that it has already decided or pronounced itself on. What it does bar is a merit-based decisional re-engagement with the case once final judgment has been entered and a decree thereon issued. There do therefore exist certain exceptions and these have been captured thus in Jersey Evening Post Ltd v Ai Thani [2002] JLR 542 at 550, also cited and applied by the Supreme Court:“A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors, nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling or adjudication must be taken to a higher court if that right is available.”

21. In the Telkom Kenya case before it, the Court of Appeal recognized that after the rendering of the final judgment of the court, the court’s only recourse would have been to review the judgment and having refused to do so, be rendered functus officio. The power of the court to review a judgment or order on account of a mistake or error apparent on the face of the record is one of the exceptions to the functus officio principle and is embedded in Order 45 Rule 1 (1) of the CPR. As earlier stated, the Applicant’s advocate explicitly and severally asserted that the instant application was not one seeking review of the subject orders.

22. This court therefore finds that the motion dated February 26, 2021 is misconceived and incompetent as its principal object is to re-open the merits of the final order on costs made on February 24, 2021. Following the filing of the instant application, the court had granted opportunity for the parties to attempt an amicable settlement on costs, the 3rd Respondent’s counsel having intimated willingness to consider nominal costs in respect of the withdrawn cause. It appears that the Applicant’s and 1st Respondent’s counsel were not keen to follow through with discussions in that regard, the Applicant’s counsel asserting during one of the subsequent mentions on April 20, 2021 that this court’s order on costs was “per incuriam” and that the court ought to transfer the cause to the Commercial Division for handling by a Judge in the said Division. The 1st and 3rd Respondents have had to shoulder the cost burden occasioned by the instant application and are entitled to costs. In view of all the foregoing, the court will strike out the motion dated February 26, 2021 with costs to the 1st and 3rd Respondents.

DELIVERED AND SIGNED ELECTRONICALLY ON THIS 7th DAY OF JUNE 2022. C.MEOLIJUDGEIn the presence of:For the Applicant: N/AFor the 1st Respondent: N/AFor the 3rd Respondent: N/AC/A: Carol