[2023] KEHC 2844 (KLR)

Muthome & another v Mathi Nicholas Muumbi t/a Junic Logistics (Civil Appeal E132 of 2021) [2023] KEHC 2844 (KLR) (28 February 2023) (Ruling)

Neutral citation: [2023] KEHC 2844 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal E132 of 2021

DKN Magare, J

February 28, 2023

Between

Peter Mulei Muthome

1st Appellant

Mupeki Hauliers Limited

2nd Appellant

and

Mathi Nicholas Muumbi t/a Junic Logistics

Respondent

Ruling

1. With time I will be unable to know what constitutes success. The nature of the application filed herein is both confusing and self-defeating that no reasonable court can grant the same.

2. Appellant/Applicant made a successful application for stay pending appeal. The court found that the application is merited or so it was thought. On January 20, 2023, the court gave a conditional for of execution to the applicants. They were to deposit security of Kshs 7,200,000/= within 60 days. The orders lapse in the next 3 weeks. The Applicant still has time to comply.

3. The Applicant has now filed this application seeking Review of the orders in the following terms:-“a.That this honouable court be pleased to review and vary the orders of 20/1/2023 requiring deposit of the entire Decretal sum of Ksh 7,200,000/=in a joint interest earning account in the names of the parties advocates on record within 60 days and in be place pleased to allow for an alternative security being Mavoko Municipality Block 86/(Mulongo Brothers) 372 and 374 whose current value is Kshs 7,200,000/= to satisfy the decree pending the hearing and determination of the Appeal.b.That the cost of this application be in the appeal.”

4. These is no merit in the application. I have perused the pleadings in the subordinate court. I note at Paragraph 8 of the Plaint the Respondent had been instructed to hold the two titles as security for due payment of his money, the very money in the subordinate court decree. This was not done.

5. The court below has shown that the Respondent was left to hold onto a towel and the baby had being thrown out with the bath water. This is the very same property the Appellant is now offering as security. The property has acted as unrealizable security before the suit was filed. The Applicant has not shown what changed, to warrant the same to be trusted again as security.

6. For an application for review under Section 80 of the Civil Procedure Act and order 45 of the Civil Procedure Rules, other than sufficient cause, there needs to be either of the following: -a.An error Apparent on the face of the recordb.Discovery of new facts, which could not with diligence been discovered before the impugned decision was made.

7. Section 80 of The Civil Procedure Act Provides as follows: -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.

8. The issue of Title Deeds has been subject of this proceedings from the inception. It is not new evidence at all. It was available and was capable of being gotten with due diligence at the time the order was made.

9. There is also no error apparent on the face of the record. Such an error should be apparent and plainly on the record and not to be discovered after complex arguments.

10. In the case MNWvsLNN (2021) eKLR at paragraph 31, Hon Justice Kariuki held and doth; -31. The other ground for review is an error apparent on the face of the record. The error is not an error that has to be searched for, interpreted or even construed.

11. In Maina Waithaka Versus Winnie Njoki Kitonyi (2023) eKLR, I had this to say by paraphrasing Thomas Jefferson during the declaration of the independence of the US:“error like the truth is self-evident. They are by ordinary human and perception and reason seen as errors. If we have to extrapolate, construct or even base it on reason then the errors are not apparent

12. I do not find any error apparent on the face of the record.

13. Regarding any sufficient cause, the same should be such other a court sitting on review, and not appeal may allow the application. No cause has been shown.

14. The claim herein is a money decree. There is no cause shown that the deposit of money is insufficient as security. This is more so in a situation where the same security has been offered before, albeit informally, unsuccessfully.

15. The situation could have been different had the same been offered as conditionally transferring the title deeds to the Respondent. The mere holding of title deeds does not constitute security in a money decree. I am also uncomfortable with the valuation. Other than the protestations by the Respondent that the valuation is exaggerated, there is another reason.

16. The purported valuation departs a great deal with standard valuations. It is the duty of the Valuer, while exercising his professional call, to give the parties both the market rate and forced sale value. The forced sale value was omitted from the report. It cannot be gainsaid on why the forced sale value is absent from the report.

17. I am guided by section 60(1) (p) of the Evidence Act. I take judicial notice that forced sale vale is almost always 75- 80 % of the market rate. This makes the value to be about Kshs5,400,000/=. Since the forced sale value is between 75% to 80% of the market rate then the security falls far short of them security offered.

18. Had stated as doth in Climax Coaches Limited And Another Versus Charles Ndiritu Nyambura Aka Charles Ndirangu Aka Nyambura Charles Nderitu as doth:-“Indeed, in Supreme Court Petition No 26 of 2019(Consolidated with 34 and 35 of 2019) the supreme court, earlier today had this to say regarding the duty of the court when there is paucity of evidence but other ways of getting the same in paragraph 73 as doth:-“we fortified by the provisions of sections 59 and 60 of the Evidence Act which stipulate circumstances in which courts can take judicial notice of facts requiring no proof. Section 60(1)(o) of the Evidence Act stipulates that: “the courts shall take judicial notice of the following facts- … (o)all matters of general or local notoriety

19. The valuation also does not have the current search. It is a far deviation from standard Practice related to valuation. I find and hold that the two parcels of land as worthless securities. This is due to the facts earlier alluded and the incompleteness of the valuation report.

20. The admission that the 2nd Appellant has no known assets is not a plus for the Applicants. It is the very reason that a money security was ordered. There is no proper security other than a money decree in this matter.Finally, ordering a deposit of money is an exercise of discretion. Discretion is a matter of law. To be able to differ with the court of coordinate status on discretion cannot be countenanced. Even the appellate court does not have jurisdiction to set aside discretion of the court unless the discretion is not exercised judiciously.

21. Court of Appeal for East Africa in Shah vs Mbogo & another version Shah (1968) EA 93, held as doth;-“The (appellate Court) .. should not interfere with the exercise of discretion of a (trial court)..unless satisfied that he misdirected himself in some matter and as a result arrived at a wrong decision or unless it is manifested from the cause as a whole that the Judge was clearly wrong in the exercise of this discretion and that as a result these has been an injustice.”

22. Effectively, exercise of discretion is a matter of law and not a matter of fact. It is not subject to review. This are the self-same factors the court considered in allowing the application for stay. I find the application totally unmeritorious. It is a waste of precious judicial time that could be utilized in hearing the Appeal.

23. It is crucial that counsel advise the parties that an application for stay from the court below, regard is had to the chances of success of the Appeal and the nature of loss, if any. Parties cannot litigate on their own terms. Parties who are not satisfied with court decisions must find one way or another of living with the same.

24. This application thus is begging me to dismiss the same and I hereby oblige.

Costs 25. Costs follow the event. The event in this case is the dismissal of the application. The respondent is entitled to costs. Under section 27 of the Civil Procedure Act, I am entitled to indicate costs. A sum of Kshs 20,000/= will suffice.

Determination 26. The application dated 7/2/2023 lacks merit and is as such dismissed with costs of 20,000/= to the Respondent payable within 30 days from the date hereof, that is before March 30, 2023, failing which execution for the said amount of Kshs 20,000/= do issue.

27. The matter be listed for directions regarding the hearing of the main appeal.

DATED, ISSUED AND DELIVERED AT MOMBASA VIRTUALLY 28TH FEBRUARY, THE YEAR OF OUR LORD TWO THOUSAND AND TWENTY-THREE.HON. MR. JUSTICE DENNIS KIZITO MAGAREJUDGE OF THE HIGH COURT, MOMBASAIn the presence of;Maiga for the AppellantMr. Ernest Mokaya for the RespondentAndrew - Court Assistant.