[2023] KEHC 26278 (KLR)

Madison Insurance Company Kenya Limited v Kiarie & another (Civil Appeal E018 of 2021) [2023] KEHC 26278 (KLR) (4 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26278 (KLR)

Republic of Kenya

In the High Court at Naivasha

Civil Appeal E018 of 2021

FROO Olel, J

December 4, 2023

Between

Madison Insurance Company Kenya Limited

Appellant

and

Lillian Wanjiru Kiarie

1st Respondent

Robert Njiru & Racheal Wanjiku (Suing as Legal Representative of the Estate of Purity Mwihaki Maina, Dorothy Muthoni & Joel Maina - Deceased)

2nd Respondent

Ruling

A. Introduction 1. The application before this court for determination is the Notice of Motion application dated 29th June 2023 brought pursuant to provisions of Section 1A, 1B, 3A, 63(e) and 80 of the civil procedure Act, order 45 rule (1) of the Civil Procedure Rules, Articles 48,50(1),(2)(k) and 159(2) of the constitution of Kenya and all other enabling provision of law. By the said application, the Appellant/applicant seeks;a.That this Honourable court be pleased to review the orders given on 24th January 2023 by setting aside, cancelling and/or disallowing the half costs of the appeal awarded to the Respondents.b.That this Honourable court be pleased to review the orders given on 24th January 2023 by awarding full costs of the appeal to the Appellant/applicant.c.That the costs of this application be provided for.

2. The application is supported by the grounds on the face of the said application and the supporting affidavit of one Miriam Macharaia a senior claims supervisor of the appellant company dated 29th June 2023. The applicant states that on 24th January 2023 both parties did appear before this court, when the 2nd respondent informed the court that they had already been fully compensated and the decree settled in Naivasha CMCC No 247 and Naivasha CMCC No 790 of 2019 and thus it was not necessary to proceed to hear and determine the said appeal. They therefore sought to be awarded costs of the said appeal. The applicant on the other hand sort for an order that the appeal be marked as settled with no order as to costs but were overruled by the court and the 2nd respondent was awarded half costs of the appeal.

3. This appeal had originated from a ruling delivered in Naivasha CMCC 661 of 2017 dated 3rd March 2021 by Hon Y.M Baraza (SRM), where she dismissed the applicants/application seeking stay of proceedings in Naivasha CMCC 247 of 2020 and Naivasha CMCC 790 of 2019 pending hearing and determination of Naivasha CMCC No 661 of 2017, where the appellant/applicant had sought for a declaration that they were not liable to make any payments under insurance policy number CTY/701/084543/2015 in respect of any claim made against the 1st respondent for the unlawful use of motor vehicle registration KBG 326L .

4. Being dissatisfied by the said ruling, the appellant/applicant did file an appeal being Naivasha HCCA No E077 of 2021, which appeal was determined by this court in their favour on 16th May 2023 and a declaration issued that they were not liable to make any payments under the aforestated insurance policy. The said judgment exonerated the applicant from making payment including costs arising from and related to the said insurance policy and consequently the applicant was not liable to pay the 2nd respondent the half costs of the appeal as awarded. The applicant has thus sort to have the said order of 24th January 2023 be reviewed and set-aside.

5. The Respondents did oppose this application vide, their replying affidavit sworn by their advocate Benjamin. G. Wainaina dated 31st August 2023. He did state that the application was frivolous and had no merit for it was not in doubt that the appeal was moot and had been overtaken by events as the suits sought to be stayed had been heard and concluded. The court was properly clothed with jurisdiction under section 27 of the civil procedure Act to awarded costs and the said discretion could not be faulted.

6. Further the Respondents did aver that there was no nexus between this appeal and Naivasha HCCA No E077 of 2021 save for the parties being similar, but the issues were different. To the extent that the applicant believed that the court should have reached a different conclusion and not award costs was a matter fit for appeal and not review. The said application was thus bereft of merit and should be dismissed by the court.

B. Determination 7. I have carefully considered the Application, Supporting Affidavit, the Respondent’s relying affidavit and the only issue for determination is whether this court should review its orders issued on 24th January 2023 in light of the judgment delivered on 16th May 2023, where a declaration was issued that the applicant is not liable to make any payment under insurance policy No CTY/701/08453/2015.

8. Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules provides as follows: -“Section 80. ReviewAny 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; orb.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.”[Order 45, rule 1. ] Application for review of decree or order.1. (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; 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 a review of judgment to the court which passed the decree or made the order without unreasonable delay.(2)A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review”

9. From the above provisions, it is clear that while Section 80 of the Civil Procedure Act grants the court the power to make orders for review, Order 45 sets out the jurisdiction and scope of review by hinging review to discovery of new and important matters or evidence, mistake or error on the face of the record and any other sufficient reason.

10. The Court of Appeal had the following to say in an application for review in the case of National Bank of Kenya Ltd v Ndungu Njau.“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.”

11. To the statutory grounds, may also be add instances where the applicant was wrongly deprived of an opportunity to be heard or where the impugned decision or order was procured illegally or by fraud or perjury: see Serengeti Road Services -v- CRBD Bank Limited [2011] 2 EA 395. Also, to be included as part of sufficient reason is where the impugned order if reviewed, would lead the court in promoting public interest and enhancing public confidence in the rule of law and the system of justice: see Benjoh Amalgamated Limited & Another v. Kenya Commercial Bank Limited (supra).

12. First and foremost it is common ground that in Naivasha CMCC No 661 of 2017, the applicant herein sought for a declaration that they were not liable to make any payment under Insurance policy CTY/701/08453/2015 in respect of any claim made against the 1st respondent for unlawful use of motor vehicle registration KBG 326L, while in Naivasha CMCC No247 of 2020 and Naivasha CMCC No 790 of 2019 the 2nd respondent filed declaratory suits against the applicant/appellant seeking to satisfy decrees from primary suits arising from an accident that involved persons travelling on motor vehicle registration No KBG 326L.

13. It is therefore clear that the suits were inter- related and a determination as to the validity of the insurance policy No CTY/701/08453/2015 as made in Naivasha HCCA No E077 of 2021 would affect orders made in this appeal, which arose from the appellant challenging the ruling of Hon Y.M Baraza (SRM) delivered in Naivasha CMCC No 661 of 2017 where she refused to stay the proceedings in Naivasha CMCC No 247 of 2020 and Naivasha CMCC No 661 of 2017.

14. The applicant has applied for a review of the orders dated 24th January 2023, where they were ordered to pay half costs of this appeal, on the basis that the subsequent judgment made in Naivasha HCCA No E077 of 2021 has exonerated them from settling any claim made with respect of Insurance policy No CTY/701/08453/2015 for claims made against insured motor vehicle registration No KBG 326L.

15. In the paragraphs above, I have endeavored to show the nexus between this appeal and Naivasha HCCA No E077 of 2021. There is no doubt that the judgment and decree issued in Naivasha HCCA No E077 OF 2021 has exonerated the appellant/applicant from making any payments under the said insurance policy. That being the factual position it constitutes sufficient reason, the basis upon which the orders of 24th January 2023 can be reviewed. The applicant cannot be condemned to pay half costs in this suit, whereas the court has exonerated them under the same policy. This order has to be issued promote judicial consistency and enhancing public confidence in the rule of law and the system of justice: see Benjoh Amalgamated Limited & Another v. Kenya Commercial Bank Limited (supra).

16. The applicant has also sort for orders that they be awarded costs of this appeal. There is no basis upon which they should be awarded the said costs as they had settled the primary decree in both declaratory matters filed before the subordinate court, while this appeal was pending. There must be an end to litigation and each party must be content with the piece of pie they received from the justice chain.

Disposition 17. The application dated 22nd May 2023 is therefore partially allowed in terms of prayer (2). The award of half costs payable to the 2nd respondent is hereby set aside and substituted with an order that this appeal is marked as settled and each party will bear their own costs. Each party will also bear their own costs of this application.

18. It is so ordered.

RULING WRITTEN, DATED AND SIGNED AT MACHAKOS THIS 4TH DAY OF DECEMBER 2023. FRANCIS RAYOLA OLELJUDGEDELIVERED ON THE VIRTUAL PLATFORM, TEAMS THIS 4TH DAY OF DECEMBER, 2023. In the presence of;Mr. Arati for AppellantMr. Wainana for RespondentSusan Court Assistan