[2022] KEHC 12494 (KLR)

Middle East Bank Kenya Limited v Badru & another (Civil Suit 56 of 2017) [2022] KEHC 12494 (KLR) (13 June 2022) (Ruling)

Neutral citation: [2022] KEHC 12494 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Suit 56 of 2017

OA Sewe, J

June 13, 2022

Between

Middle East Bank Kenya Limited

Plaintiff

and

Widad Hussein Badru

1st Defendant

Hassam Saleh Manswab

2nd Defendant

Ruling

[1]There are two applications coming up for determination. The 1st application is the Notice of Motion dated October 19, 2021. It was filed on October 21, 2021pursuant to sections 1A, 1B and 3A of the Civil Procedure Act as well as Order 45 Rule 1and Order 50 Rule 1 of the Civil Procedure Rules. The plaintiff thereby prayed for orders that:[a]Spent[b]the court be pleased to review, vacate and set aside the orders issued herein on October 18, 2021;[b]The court be pleased to grant leave to the plaintiff to file its Replying Affidavit out of time to the 2nd defendant’s application dated September 24, 2021;[c]The court be pleased to make any other or such further orders as it may deem fit and just to grant;[d]The costs of the application be provided for.

[2]The application was premised on the grounds that the matter came up in court on October 18, 2021for the hearing of the 2nd defendant’s Notice of Motion application dated September 24, 2021; and that counsel holding brief on behalf of counsel for the plaintiff had challenges logging into the Teams portal for virtual hearing on time as the link given for the day in the cause list turned out not to be the correct one. It was further averred that by the time counsel managed to log in, the matter had been called out and orders given ex parte. It was therefore prayed that, in the interest of justice and fair play, an opportunity be given to the plaintiff to oppose the 2nd defendant’s application dated September 24, 2021.

[3]The application is supported by the affidavit of Mr. K.O. Mokaya, Advocate, sworn on October 19, 2021, in which he deposed that he had instructions from Mr. Esmail, Advocate for the plaintiff, to hold his brief in this matter on October 18, 2021. He averred that he had challenges logging into the Microsoft Teams online platform for virtual hearing using the link given in the cause list for the day; and that by the time he logged in, the case had already been called out and dealt with in his absence. He explained that failure to log in on time was not deliberate or intentional; and is therefore excusable. He prayed, in the interest of justice, that the impugned orders be reviewed and set aside to accord the plaintiff an opportunity to ventilate its response to the subject application. Counsel attached a copy of the cause list for October 18, 2021as an annexure to his affidavit.

[4]The application was resisted by the 2nd defendant vide his replying affidavit, sworn on November 17, 2021and filed on November 18, 2021. He averred that the application had been overtaken by events in that the court had already delivered its ruling on October 21, 2021and dismissed the plaintiff’s suit. In the light of that, he averred that the Court is functus officio; and therefore that the orders sought cannot be granted unless the court is appropriately moved to give life to the suit. The 2nd defendant further averred that, even assuming that the application has not been overtaken by events, the grounds set out on the face of the motion and in the Supporting Affidavit do not justify the grant of the orders sought. He pointed out that:[a]By their own confession, counsel for the plaintiff were aware of the hearing date of October 18, 2021but failed to attend court;[b]There is no demonstration that the link posted in the cause list for the day was the wrong link;[c]No response to the application dated September 24, 2021had been filed by the time the application came up for hearing on September 18, 2021, despite the fact that the plaintiff had been served way back on 6th October 2021;[d]No draft response to the application was annexed to the Supporting Affidavit.

[5]Thus, it was the averment of the 2nd defendant that the plaintiff is not serious with this matter, and is therefore not deserving of the orders sought; and that in any event the application has been overtaken by events and therefore should be dismissed with costs.

[6]Mr. Esmail filed a further affidavit onDecember 1, 2021, with the leave of the court, and explained that, until he was served with the 2nd defendant’s affidavit, he was unaware that the court had already delivered its ruling in respect of the 2nd defendant’s application. He consequently filed the 2nd application dated November 29, 2021on behalf of the plaintiff, targeting the ruling itself. The said motion was filed under article 50(1) of the Constitution, sections 1A, 1B and 80 of the Civil Procedure Act, Chapter 21 of the Laws of Kenya as well as Order 17 Rule 2 and Order 51 Rules 1, 12 and 15 of the Civil Procedure Rules for orders that:[a]Spent[b]Spent[c]The Ruling delivered herein on October 21, 2021dismissing this suit be reviewed or set aside;[c]The Order extracted, signed and sealed on October 22, 2021be struck out of the court record; and[d]The Costs of the application be provided for.

[7]The application was predicated on the grounds that there was no fair trial held prior to the delivery of the said ruling; and therefore that there was no just determination of the issues raised in the 2nd defendant’s application. It was further averred by the applicant that, immediately following the ruling the 2nd defendant’s advocates extracted an Order based on the said ruling and had the Deputy Registrar to sign and seal it, in gross violation of Order 21 Rule 8 of the Civil Procedure Rules. The applicant was apprehensive that the 2nd defendant would consider himself discharged from the interim injunction issued on 14th May 2020 and utilize the Order to the plaintiff’s detriment.

[8]The application was premised on the affidavit of Mr. Akber Esmail, Advocate, sworn on November 29, 2021in which he amplified the grounds set out on the face of the application. At paragraphs 13 to 44 of the said affidavit, counsel explained the reasons for his non-attendance. In particular, he stated at paragraphs 30 and 31 that on October 13, 2021, he left Nairobi for the USA; and that he was unaware that an ex parte hearing date had been fixed for the application for 18th October 2021. He consequently sent an email to counsel for the defendants explaining his predicament.

[9]At paragraph 39 of his affidavit, Mr. Esmail averred that, since there was no answer to the said email, he contacted Mr. K.O. Mokaya, an advocate practicing in Mombasa, to appear in court on his behalf on October 18, 2021and request for adjournment; but that due to problems with the Court’s Microsoft Teams link, by the time Mr. Mokaya was able to log in and appear virtually, the NTSC application had already been called and heard ex parte. He further pointed out that on the very next day, Mr. Mokaya filed an application, under Certificate of Urgency, to vacate, review or set aside the orders made on October 18, 2021.

[10]The 2nd application was also opposed by the 2nd defendant, Hassan Saleh Manswab. He relied on his Replying Affidavit sworn on February 1, 2022in which he averred that no sufficient cause has been shown by the plaintiff to warrant the exercise of the Court’s discretion in its favour. He pointed out that at paragraphs 17 to 19 of the Supporting Affidavit the plaintiff admitted that it did not take any steps to prosecute the case as is required by law; and therefore that the dismissal was warranted. He further asserted that the delay of over 16 months is inexcusable; and that it is to no avail for the plaintiff to hide behind the Covid-19 pandemic. He consequently prayed for the dismissal of the application with costs.

[11]Counsel for the plaintiff urged the applications by way of written submissions which he highlighted on February 17, 2022. His main argument was that, after hearing the 2nd defendant’s application, the Court ought to have issued a Notice to Show Cause to the plaintiff before dismissing the suit for want of prosecution. Counsel therefore submitted that the impugned ruling and order are null and void for having been made without jurisdiction. He made reference to Bhari v Khan [1963] EA 94, Omega Enterprises v Kenya Tourist Development Corporation[1968] eKLR, Republic v Karisa Chengo [2017] eKLR, among other authorities to support his argument. He also complained that the order denied the plaintiff his right to fair hearing as guaranteed by article 50(1) of the Constitution. He cited Standard Chartered Financial Services v Manchester Outfitters [2016] eKLR for the proposition that the right to fair trial is one of the cornerstones of a just and democratic society and must therefore be jealously guarded.

[12]Counsel then went on to complain against his colleagues and how they failed to disclose to the court that they had received emails from him informing them that he was away in the USA and was therefore unable to attend court on October 18, 2021. He consequently accused the 2nd defendant of material non-disclosure on that account, citing Orion East Africa v Ecobank [2016] EA 441. Mr. Esmail accused the defendants of being fraudsters who should not be permitted to retain assets acquired by theft and fraud. He was, in essence, apprehensive that counsel for the 2nd defendant was up to no good in rushing to have the order extracted for enforcement without first sharing a draft with him as required by Order 21 Rule 8(2) of the Civil Procedure Rules.

[13]On his part, Mr. Muliro, counsel for the 2nd defendant, relied entirely on the Replying Affidavit sworn by the 2nd defendant and reiterated his posturing that the Court is functus officio, the suit having been dismissed with costs; which argument I find tenuous in the face of an application for review, such as is before the Court.

[14]I have given due consideration to the two complementary applications filed herein by the plaintiff. I have likewise perused the affidavits filed by the parties in the light of the proceedings on record. The record confirms that this suit was indeed dismissed for want of prosecution on 21st October 2021 at the instance of the 2nd defendant, after the court was satisfied that the strictures of Order 17 Rule 2(2) and (3) of the Civil Procedure Rules had been met. Accordingly, the only issue arising for determination is whether sufficient cause has been shown by the plaintiff for review of the order of dismissal made herein on October 21, 2021.

[15]The plaintiff relied, in the main, on Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. Section 80 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.”

[16]Order 45 Rule 1 of the Civil Procedure Rules, on the other hand, 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.

[17]Accordingly, a party seeking review is under obligation to demonstrate that:[a]there has been discovery of new and important matter or evidence which after due diligence, was not within the applicant's knowledge or could not be produced at that time; or[b]there is some mistake or error apparent on the face of the record; or[c]that there is any other sufficient reason; and[d]that the application has been brought without unreasonable delay.

[18]There two applications were certainly filed as timeously as could be and therefore were brought without delay. The main ground relied on in support of the application is the contention, not that there is discovery of new and important matter or evidence which after due diligence, was not within the plaintiff’s knowledge or could not be produced when the ruling dated October 21, 2021was delivered, but that the court had no jurisdiction to make the order for dismissal on the ground that no such order was sought for in the first place; and secondly, that the court had no jurisdiction to dismiss the suit without first issuing a notice to show cause to the plaintiff. Thus, counsel appears to be questioning the propriety of the ruling delivered herein on 21st October 2021 on the ground that amounts to an error on the face of the record.

[19]What amounts to an error apparent on the face of the record was explained by the Court of Appeal in the case of Nyamogo & Nyamogo Advocates v Kago(2001) 1 EA 173, thus:“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 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, though another view was also possible. Mere error or wrong view is certainly no ground for review although it may be for an appeal..."

[20]Similarly, in National Bank of Kenya Limited v Ndungu Njau [1997] eKLR, the Court of Appeal held that:“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 the Court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of the law cannot be a ground for review..."

[21]Order 17 Rule 2 of the Civil Procedure Rules pursuant to which the application dated September 24, 2021had been brought, provides that:[1]In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit.[2]If cause is shown to the satisfaction of the court it may make such orders as it thinks fit to obtain expeditious hearing of the suit.[3]Any party to the suit may apply for its dismissal as provided in sub-rule 1. [4]The court may dismiss the suit for non-compliance with any direction given under this Order.

[22]Thus, Order 17 Rule 2 of the Civil Procedure Rules presents two different scenarios as paths to dismissal for want of prosecution. The first one is at the Court’s initiative, as per Rule 2(1); the second scenario is on the application of a party under Rule 2(3). To my mind, where the dismissal is sought by a party under Rule 2(3), the application itself serves as notice to show cause and there would therefore be no need for the Court to hear the application and thereafter issue a fresh notice to show cause under Rule 2(1). I find succor for this posturing in Nzoia Sugar Company Limited v West Kenya Sugar Limited [2020] eKLR, in which Hon. Musyoka, J. held that:“Order 17 Rule 2 provides that a matter should have been pending for twelve months before the court, either on its own motion or on the application by a party, makes an order for its dismissal for want of prosecution...The last time the instant matter was in court was on the 31st October 2017, when the court dismissed the plaintiff’s application for temporary injunction. The plaintiff has not offered any reason as to why the suit has never been prosecuted save for the fact that they are no longer in operation, averments which have not also been proved. It is, therefore, my finding and holding that the delay is inordinate and inexcusable. See Jimmy Mutuku Kiamba v Nation Media Group Limited & 2 others [2020] eKLR.”

[23]The learned Judge proceeded to dismiss the suit for want of prosecution without further ado. In this case, the application for dismissal was similarly presented under Order 17 Rule 2(3) of the Civil Procedure Rules; and the specific prayers by the 2nd defendant were:[a]Thatthe Plaintiff to show cause why this suit should not be dismissed for want of prosecution and upon failing to show cause this Honourable Court be pleased to dismiss this suit for want of prosection;[b]Thatcosts of this application and suit be provided for.”

[24]It is therefore fallacious for Mr. Esmail to state that, in its ruling dated October 21, 2021, the court granted orders that were not prayed for in the application. And, if the contention of counsel was that the Court misconstrued the provisions of Order 17 Rule 2 of the Civil Procedure Rules, as is manifest, then his recourse ought to have been on appeal. Indeed, in the National Bank of Kenya Case (supra) the Court of Appeal observed that:“...the learned Judge ... made a conscious decision on the matters in controversy and exercised his discretion in favour of the respondent. If he had reached a wrong conclusion of law, it could be a good ground for appeal but not for review. Otherwise we agree that the Learned Judge would be sitting in appeal on his own judgment which is not permissible in law. An issue which has been hotly contested as in this case cannot be reviewed by the same court which had adjudicated upon it."

[25]That being my view, it is manifest that the plaintiff has failed to demonstrate that there is an error apparent on the face of the record to warrant a review as sought. That notwithstanding, it was explained in the affidavit of Mr. Mogaka that although he had instructions to attend court and hold brief for counsel for the plaintiff on October 18, 2021, he was unable to do so because an erroneous link had been posted in the cause list for the day; and that by the time he succeeded in logging in, this matter had been called and dealt with ex parte. This, in my considered view is a plausible justification for review under the “any other sufficient cause” rubric. Needless to add that the overall objective of the Court in such instances is to ensure even-handedness in the adjudication of disputes; and therefore where a convincing reason has been given by a party for failure to attend court, the court ought to accord such a party a chance to be heard. In CMC Holdings Limited v Nzioki[2004] 1 KLR 173, it was held that:“In law, the discretion that a Court of law has, in deciding whether or not to set aside an ex-parte order…was meant to ensure that a litigant does not suffer injustice or hardship as a result of among other things an excusable mistake or error. It would...not be proper use of such a discretion if the Court turns its back to a litigant who clearly demonstrates such an excusable mistake, inadvertence, accident or error..."

[26]And in Philip Chemwolo &another v Augustine Kubende [1982-88] KAR 103, it was observed that:“...the broad equity approach to these matters is that unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs..."

[27]It on that account that I hereby allow the applications dated October 19, 2021and November 29, 2021and issue orders as hereunder:[a]That the Ruling dated October 21, 2021be and is hereby set aside along with all orders consequential thereto;[b]That immediate steps be taken to prepare this suit for hearing and determination on the merits;[c]That costs of the two application be costs in the cause.It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS THIS 13TH DAY OF JUNE 2022. OLGA SEWEJUDGE