[2023] KEHC 25518 (KLR)

Machira t/a Machira & Co Advocates v Kariuki t/a JM Kariuki Co Advocates (Civil Case E199 of 2020) [2023] KEHC 25518 (KLR) (Civ) (21 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25518 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case E199 of 2020

JN Mulwa, J

November 21, 2023

Between

John Patrick Machira t/a Machira & Co Advocates

Applicant

and

Joseph Munya Kariuki t/a JM Kariuki Co Advocates

Respondent

Ruling

1. Before the Court are two Applications for determination, dated 24/01/2023 and 6/03/2023. In both Applications, the Decree Holder (D/H) is represented by Machira & Company Advocates while the Judgment Debtor (J/D) is represented by J. M. Kariuki & Co. Advocates.

2. In the Application dated 24/01/2023 the Applicant J. P. Machira, Advocate seeks orders: -1. Spent2. That the Ruling/Order made by this Court (Hon. J. Mulwa J.) on 8/12/2022 be Corrected and/or varied to include all interest as earlier awarded by C. Meoli, J. on 14/04/2022. 3.….. to be in harmony with the order of Meoli J on 14/04/2022 as regards all accrued interests, which interest continues to accrue until payment in full.4. That costs of the application be paid by the Respondent.

3. It is based on grounds as appears on its face that: -a.On 14/04/2022, Hon. Meoli J issued an order, directing Josephat Munyua Kariuki T/A J. M. Kariuki & Co. Advocates to pay the Applicant John Patrick Machira T/A Machira & CO. Advocates a sum of Kshs. 1,743,351/= together with interest at court rate of 14% from 15/08/2020 until payment in fullb.That there was neither any application or request to vary or interfere with the court order of Hon. Meoli J.c.That the orders dated 8/12/2022 of Hon. J.Mulwa J denies the Applicant substantial money in interest which is payable by the judgment Debtor, and therefore it is fair and just that the Order/Ruling be corrected or varied.The supporting affidavit was sworn by the Applicant on the 24/01/2023

4. In opposition to the Application, the Respondent filed a Replying Affidavit sworn on 4/04/2023; and Grounds of Opposition dated 28/04/2023; that the award by Hon. Meoli J. on 14/12/2021 was founded on an illegality occasioned by the Applicant, unbeknown by the court at the time of delivery of the order; that this court cannot review an order or judgment that is tainted with illegality; nor can it enforce such an order, and therefore the said orders (Hon. Meoli J.) are moot and a nullity.

5. Before this application court be heard and determined, the Respondent J. M. Kariuki & Co Advocates moved the court by an Application dated 6/03/2023 seeking numerous orders: -1. Spent2. That pending the hearing and determination of this Application inter-parties this honorable Court be pleased to stay execution of the Order issued on 8th December, 2022 by Hon. Justice Mulwa, and the ex-parte Order/judgment delivered by Hon. Justice C. Meoli on the 14th December 2021 pending the hearing of this Application inter-parties.3. That pending the hearing and determination of this Application and the Applicant’s Notice of Motion dated 24/01/2023, this honourable court be pleased to stay execution of the order issued on 8/12/2022 by Hon. Justice Mulwa, and the ex-parte Order/Judgment delivered by Hon. Justice C. Meoli on the 14/12/2021. 4.That this Honourable Court be pleased to review the ex-parte Order/Judgment delivered by Hon. C. Meoli on the 14/12/2021. 5.That this Hon. Court sets aside the ruling delivered on 8/12/2022 by Hon. Justice Mulwa.6. That the professional undertaking issued by J. M. Kariuki & Co. Advocates to Machira & Co. Advocates dated 13/05/2020 for a sum of Kshs. 17,743,315/=be set aside.7. That the professional undertaking issued by J. M. Kariuki & Co. Advocates to Machira & Co. Advocates dated 13/05/2020 for a sum of Kshs. 17,743,315= is void ab-initio.8. That the Applicant has fully settled the decretal sums with interest in High Court Commercial & Tax Division Misc. Application no. 150 of 2001 Machira & Co. Advocates v Arthur K. Magugu & Ano and High court Commercial & Tax Division Misc Application No. 151 of 2001 Machira & Co. Advocates v Arthur K. Magugug & Margaret Magugu under enforcement in High Court Civil Case No. E199 of 2020 John Patrick Machira T/A Machira & Company Advocates v Josephat Kariuki Munyua T/A J. M Kariuki & Co. Advocates.9. That the Applicant has settled the decretal sums with interest due in High Court Commercial & Tax Division Misc App. 150 of 2001 Machira & Co Advocates v Arthur K. Magugu & Another and High Court Commercial & Tax Division Misc. Application No. 151 of 2001 Machira & Co. Advocates v Arthur K. Magugu & Margaret Magugu in excess of Kshs. 8,039,150. 58/= all under enforcement in High Court Civil Case No. E199 of 2020 John Patrick Machira T/A Machira & Company Advocates v Josephat Kariuki Munya T/A J. M. Kariuki & Co. Advocates.

6. The Application is supported by an affidavit sworn on 6/03/2023 by the Applicant Advocate and annexures thereto.

7. In reply to the Application, the Respondent, John Patrick Machira Advocate swore the Replying Affidavit on the 4/4 /2023 stating the Application is a grave abuse of Orders dated 8/12/2022 when the applicant was graciously granted stay of execution and leave to pay by installments of the balance to the Decree Holder, and further disputing allegations of overpayment, unlawful calculations of interest and introducing new allegations not pleaded in the Originating Summons filed on 27/11/2020 which Hon. C. Meoli determined in a judgment in his favour.

8. In addition, the Respondent (J. P. Machira Advocates) avers that the Applicant Advocate has substantively paid the judgment sum, leaving a balance of Kshs. 1,309,293. 04 plus interest and which he provided his calculations as at 31/05/2022.

9. The Respondent refers to the two court orders under attack, and submits that other than a mistake or error of the Order of 8/12/2022 by J. Mulwa, that pegs the interest at a fixed figure, contrary to the order of C. Meoli, J on 14/12/2021 the order was conclusive, final and determined the dispute between the parties herein, and therefore should not be set aside or interfered with and therefore urges for a dismissal of the Application dated 6/03/2023 with costs.

10. I have carefully considered what each of the two parties seek in their respective applications; and the two impugned rulings (orders) dated 14/12/2021 and 8/12/2022. The Order of 14/04/2021 by C. Meoli J. reads: -1. That the Respondent herein Josephat Munyua Kariuki T/A J. M. Kariuki & Co. Advocates to honour his professional undertaking contained in his letter dated 13/05/2020 addressed to Messrs Machira and Company Advocates.2. That the Respondent do forthwith pay the Applicant an outstanding sum of Kshs. 1,743,315. 00 together with interest at court rate of 14% per annum from 15/08/2020 until payment in full.3. That costs of the application to the Applicant.

11. The orders of 8/12/2022 by Hon. J. Mulwa reads as hereunder: -1. The Applicant (Josephat Munyua Kariuki) shall settle the balance of the Decretal sum of Kshs. 1,743,315. 10/- with interest at Kshs. 2,181,293. 04/- in two equal installments on or before the 30/01/2023, and, on or before 28/02/2023. 2.That in default in either of the installments stated at (1) above, the Respondent (John Patrick Machira) to be at liberty to execute the Decree.3. The costs of this application shall be borne by the Applicants.

12. Issues for Determination1. Whether this court may correct, vary or set aside its orders dated 8/12/2022 by Hon. Mulwa J, to include all interests earlier awarded by the Hon. C. Meoli J on 14/12/2021 which interest continues to accrue until payment in full.2. Whether the judgment delivered by Hon. C. Meoli J. on the 14/12/2021 ought to be set aside, as being founded on, and tainted with illegality, and therefore not capable of an order of review or enforcement.3. Whether the said judgment dated 14/12/2021 is a nullity ab initio

13. These in my considered view are weighty issues that ought to be heard and determined, before this court proceeds to consider the Application filed by Machira & company Advocates for review of the orders dated 8/12/2022.

14. The impugned judgment was delivered by the Hon. C. Meoli J upon hearing of the originating summons. Order 45 rule 1 of the Civil Procedure Rules provides for Review of decrees or orders by an aggrieved party, upon; -a.Discovery of a new and important matter of evidence which after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time the decree was made;b.A mistake or error apparent on the face of the record.c.Any other sufficient reason.

15. Rule 2 thereof provides that such application, on grounds stated at Rule 1 shall be made only to the judge who passed the decree or made the order sought to be reviewed.

16. The decree and orders sought to be reviewed, under the Application dated 24/01/2023 may be so done by this court (J. Mulwa J.) on account of an error or mistake at the face of the record. However, a reading of the corrections of alleged errors arise from the judgment of the court (C. Meoli J. dated 14/12/2021) and therefore; this court may not be competent to interpret the said orders in respect to the calculations of interests and interest rates.

17. What I am saying is that the review of the interest rates must be considered together with the judgment of the court. The competent court to do so in my view is the Hon. C. Meoli J. whose judgment set interest rates at 14% per annum until payment in full.

18. On the other hand, the issues of the Judgment of Meoli J, being unlawful and tainted with illegalities, and therefore not capable of being subject to any review order, setting aside or variation, it is the judge, if available, who ought to review the same to find if such weighty allegations indeed are evident on the face of the record, or if any new evidence was discovered after the hearing of the originating summons in terms of rule 2 of order 45, CPR; or whether such grave allegations of illegality and unlawfulness are matters of Review orders or Appeal.

19. In the circumstances, I find that the Applications dated 24/01/2023 and 6/03/2023 both being joined at the hip, cannot be separated for purposes of determination; as the genesis of the complaints go back to the judgment delivered on the 14/12/2021, Orders of 14/04/2022 as well as the Ruling of 8/12/2022.

20. I therefore conclude that the Hon. C. Meoli J. will be most suited to hear and determine the Applications, and specifically the Application dated 6/03/2023; to determine the issues raised therein or to give directions on the same as its outcome may as well settle the totality of complaints in this case.

21. Consequently, let this matter be placed before the Hon. C. Meoli J. for further directions on 13/12/2023. Orders accordingly.

DELIVERED, DATED AND SIGNED AT NAIROBI THIS 21ST DAY OF NOVEMBER, 2023. JANET MULWAJUDGE