[2023] KEHC 26571 (KLR)

Modern Coast v Momanyi (Suing as the Legal Representative of the Estate of Ezna Gesare Getange (Deceased)) (Civil Appeal E006 of 2023) [2023] KEHC 26571 (KLR) (Civ) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26571 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E006 of 2023

WA Okwany, J

December 14, 2023

Between

Modern Coast

Appellant

and

Stephen Nyakweba Momanyi

Respondent

Suing as the Legal Representative of the Estate of Ezna Gesare Getange (Deceased)

Ruling

1. The Applicant/Respondent herein sued the Appellant/Respondent before the trial court in Keroka Civil Case No 108 of 2019 seeking damages arising out of a road traffic accident under the Law Reform Act and Fatal Accidents Act. The trial court entered judgment in favour of the Applicant/Respondent who was awarded damages in the sum of Kshs 3,319,000/=.

2. The parties later amicably agreed that a total sum of Kshs 1,999,000/= be paid in damages. They recorded a consent to this effect which consent was adopted as an order of the trial court on 18th April 2023. As at the time of recording the consent, the appeal had already been filed vide Memorandum of Appeal dated 8th March 2023.

3. When the matter came up for directions before me on 17th July 2023, the Appellant/Respondent’s advocate asked the Court to mark the appeal settled with no orders as to costs on account of the aforesaid consent order.

4. The Respondent/Applicant’s Counsel was however not in court on the day the case was marked as settled. The said counsel now claims that there was an error apparent on the face of the record in marking the appeal as withdrawn with no order as to costs. He consequently filed the Application dated 26th July 2023 seeking orders to review and/or vary the order made on the 17th day of July 2023 marking the Appeal settled. He further seeks orders for the reopening of the appeal.

5. The application is brought under Article 159 of the Constitution and is premised on grounds the Applicant’s counsel did not attend court on the date the appeal was withdrawn because the date was not correctly diarized. He urged the Court not to visit his mistake upon the Applicant who is an innocent litigant thus deserving of costs.

6. The Respondent opposed the Application through the Replying Affidavit of Ouma Maurice Otieno Advocate who states that the Application is devoid of merit, an abuse of the court process and ought to be dismissed with costs.

7. The Application was canvassed by way of written submissions.

Applicant’s Submissions. 8. The Applicant’s case was that the appeal should not have been withdrawn with no orders as to costs. He seeks an order for review so that the court can address the issue of costs. It was submitted that Counsel for the Appellant/Respondent misled the court that the issue of costs had been addressed and settled.

9. The Applicant however conceded that consent was recorded before the trial court on the basis of a compromise reached on the trial court’s award but added that the said did not automatically translate to compromising costs of the Appeal to the Applicant’s detriment. Reference was made to the case of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others (2014) eKLR where it was held that the object of costs is not punish a litigant but to reimburse the successful party for the amounts expended on the case.

10. It was further submitted that costs follow the event and that there was no reason for the Court to deny the Applicant the same, considering the nature of the case.

The Respondent’s Submissions 11. The Respondent submitted that the parties recorded a consent before the trial court on 18th April 2023 after which settlement cheques for the entire decretal sum were sent to the Applicant thus rendering the substratum of the appeal inexistent. It was submitted that the instant Application is an abuse of the court process as it has been made in bad faith. Reference was made to the decision in Haraf Traders Ltd. v Narok County Government 2022 eKLR, and Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others (2014) eKLR where the court held that the jurisprudence on costs was discretionary on the judicial officer but they ought to be guided by the circumstances of the case and that good reasons must be furnished for departing from the principle that costs follow the event as enunciated by Kuloba J (Rtd) in his Judicial Hints of Civil Procedure, 2nd Edition (Nairobi) Law Africa, 2011 at page 94.

12. It was submitted that the present appeal called for settlement with no orders as to costs because the appeal did not go for trial as it was withdrawn before any documents were submitted.

13. It was also submitted that the Application does not meet the parameters set out under Order 45 of the Civil Procedure Rules.

Analysis and Determination 14. I have considered the instant application, the response. by the Respondent and the parties’ rival submissions. The main issue for determination is whether the applicant has made out a case for the review of the orders of 17th July 2023.

15. The principles governing review are explained under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules 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)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.”

16. The above provisions indicate that a court can only review or vary its orders where there is a discovery of new and important matter or evidence which could not have been produced by the Applicant at the time of making the orders, or where there was a mistake or error apparent on the face of the record, or any other sufficient reasons. In Ajit Kumar Rath v State of Orisa, 9 Supreme Court Cases 596 at Page 608 the Supreme Court of India held thus: -“The power can be exercised on application of a person on the discovery of new and important matter or evidence which after the exercise of due diligence was not within the knowledge or could not be produced by him at the time when the order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier; that is to say the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for stabling it. It may be pointed out that the expression “any other sufficient reason”…..means a reason sufficiently analogous to those specified in the rule…”

17. Similarly, in Fredrick Otieno Outa v Jaren Odoyo Okello and 3 others, Supreme Court Petition No 6 of 2014; [2014] eKLR the Supreme Court of Kenya held that it could vary any of its judgments, rulings or orders, in the following instances only: -“i.where the judgment, ruling or order is obtained by fraud or deceit;ii.where the judgment, ruling or order is a nullity, such as when the court itself was not competent;iii.where the court was misled into giving judgment, ruling or order under a mistaken belief that the parties had consented thereto;iv.where the judgment or ruling was rendered on the basis of a repealed law, or as a result of a deliberately concealed statutory provision.”(See also Tawai Limited v Eldoret Express Limited; National Land Commission [Interested Party] [Application 9 of 2021] [2021] KESC 24 (KLR).

18. The Applicant’s case was that the inadvertence by his counsel in making the wrong entry of the mention date in the diary resulted in the said lawyer’s absence from court when the impugned consent order was adopted. The Applicant attached an extract of the diary and email forwarding the Mention Notice as annexures marked ‘BNO1’ and ‘BNO2’ respectively. A perusal of the Mention Notice reveals that it indicates 18th July 2023 as the mention date for taking directions.

19. I find that the Applicant’s counsel made an incorrect entry of the mention date in his diary thus resulting in his absence from court on the date the appeal was marked as withdrawn. I further find that the explanation given by the Applicant’s Counsel for his failure to attend court was plausible. This is a clear case where the mistake by counsel resulted in the issuing of the impugned orders. In Itute Ingu & another v Isumael Mwakavi Mwendwa [1994] eKLR, the court stated: -“What I understood the applicants to be telling me by citing this case is that the error by their advocate should not be a bar to my exercising my discretion in their favour. Since the amendment to this Court’s rule 4, the discretion of the Court under that rule is wholly unfettered and I agree with the applicants that a mistake by counsel, particularly where such a mistake is bona fide, can entitle an applicant to the exercise of the court’s discretion in his favour. But before doing so, the Court must, of necessity, examine the nature or quality of the mistake or mistakes.”

20. The next issue for my consideration is whether this application meets the conditions set under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules for granting of orders for review.

21. I note that while the applicant did not claim that he had discovered any new or important evidence, he argued that there was any error apparent on the face of the record. An error apparent on the face of the record was explained by the Court of Appeal in the case of Muyodi v Industrial and Commercial Development Corporation & another [2006] 1 EA 243, as follows: -“In Nyamogo & Nyamogo v 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 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 and is certainly no ground for a review although it may be for an appeal. This laid down principle of law is indeed applicable in the matter before us.”

22. My understanding of the applicant’s grievance is that he should have been awarded the costs of the withdrawn appeal. I am of the view that failure to award costs cannot constitute an error apparent on the face because costs ordinarily follow the event and are awarded at the court’s discretion. In the present case, it was not disputed that the appeal did not proceed for hearing as the parties compromised the suit before the lower court. I therefore agree with the Respondent’s position that the Applicant was not entitled to any costs in the Appeal as the same did not take off. My view is that the appeal was automatically spent the moment the parties agreed on the settlement of the decretal sum before the trial court.

23. A perusal of the trial court’s record however reveals that while parties agreed on the settlement of the award on general damages, the issue of costs awarded by the trial court was not addressed by the parties. I have also perused the documents filed alongside the Respondent’s Replying Affidavit. I note that in the Respondent’s annexure marked ‘OM3d’ addressed to APA Insurance Ltd, the Respondent’s Insurer was informed that the decretal sum was renegotiated to Kshs 1,999,000/= but that the issue of costs of the suit was yet to be agreed upon.

24. I also note that in the Respondent’s letter dated 27th May 2023 (marked ‘OM3e’) the Respondent’s Counsel proposed that the issue of costs be settled by offsetting the same from the costs payable by the Applicant in Keroka PMCC No 94 of 2019. When the matter came up before me on 15th June 2023, Mr. Kimaiyo, Counsel for the Applicant, sought the Court’s directions with respect to the issue of costs since the decretal sum had been settled.

25. From the above narration of the circumstances surrounding the issue of costs, it is clear that the costs awarded by the trial court were yet to the paid. In the subsequent hearing on 17th July 2023, the Respondent’s Counsel informed the Court that the Appeal had been compromised and should be marked as settled with no orders as to costs. Having regard to the facts of this case, it is apparent that Counsel for the Respondent misled this Court into believing that all issues had been resolved. This Court then proceeded to mark the appeal as withdrawn under the mistaken belief that the parties had consented to settling all matters in the appeal including the issue of costs. Unfortunately, that does not appear to be the position.

26. My finding is that the impugned orders occasioned miscarriage of justice and that there is therefore a need to vary the said orders. I am guided by the decision in Richard Nchapai Leiyang v IEBC & 2 others Civil Appeal 18 of 2013 where the Court of Appeal observed as follows: -“We agree with the noble principles which go further to establish that the courts’ discretion to set aside ex parte judgment or order for that matter, is intended to avoid injustice or hardship resulting from an accident, inadvertence or excusable mistake or error but not to assist a person who deliberately seeks to obstruct or delay the course of justice.”

27. It is clear to this court that parties only recorded a consent on the award of damages and not costs. This means that the Applicant will still be within his rights to pursue the costs awarded to him before the trial court.

28. In the final analysis, I find that the instant Application is merited and I therefore allow it in the following terms: -a.The Appeal dated 8th March 2023 is hereby marked as withdrawn.b.The Order of Costs by the trial court with respect to the trial court suit is hereby affirmed. The Respondent is directed to settle same in favour of the Applicant.c.There will be no orders as to the costs of the appeal.d.The Respondent shall bear the costs of this Application.

29. Orders accordingly.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS THIS 14TH DAY OF DECEMBER 2023. W. A. OKWANYJUDGE