[2022] KEHC 16125 (KLR)

Njeru & 2 others v Attorney General (Civil Appeal 66 & 67 of 2016 (Consolidated)) [2022] KEHC 16125 (KLR) (7 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16125 (KLR)

Republic of Kenya

In the High Court at Embu

Civil Appeal 66 & 67 of 2016 (Consolidated)

LM Njuguna, J

December 7, 2022

Between

Agapius Nyaga Njeru

1st Applicant

Leonard Munene Mambo

2nd Applicant

Nicholas Kirimi Muthumbi

3rd Applicant

and

Honourable Attorney General

Respondent

Judgment

1. The matter for determination before the court is an application dated July 5, 2022 wherein the applicant sought for orders that:i.That the Honourable Court be pleased to amend and correct the title of the judgment and contents of the judgment as it omitted the 3rd applicant/appellant Nicholas Kirimi Muthumbi in the body of the judgment and also in the assessment of the general damages, costs and interests in the High court and also interest from the date of dismissal of the lower court suit on July 24, 2014 in the judgment delivered on June 2, 2022. ii.That the Honourable Court be pleased to review its assessment on the low quantum and award reasonable quantum of general damages for the 1st applicants/ appellants and provide for costs and interests in the High Court and also interest to commence from the date of dismissal of the two lower court cases on July 24, 2013 until payment in full as it is the norm, fair and just practice in all money compensation cases.iii.That the amended judgment be re-issued to include reasonable general damages for the three applicants/ appellants’ costs and interests from the date of dismissal of the two suits in the lower court on July 24, 2013 and until payment in full as it is the norm, fair and just practice in general damages/monetary compensation cases and as pleaded in the appeal.

2. The application is premised on the grounds on its face and further supported by the affidavit of Mr James H Gitau Mwara.

3. The application in a nutshell states that the Honourable Court in its judgment on June 2, 2022 indicated that it had consolidated Embu HCCA No 66 Agapius Nyaga Njeru & Nicholas Kirimi Muthumbi v The Hon attorney General; Embu HCCA No 67 of 2016Agapius Nyaga Njeru v Leonard Munene Mambo v The Hon Attorney General. That upon perusal, he found that the court had awarded the 2nd applicant in the Embu HCCA No 67 of 2016 Agapius Nyaga Njeru & Nicholas Kirimi Muthumbi v The Hon attorney General and awarded minimum damages of Kshs 100,000/= with costs but no interests. Further, the court did not award the costs of the suit in the lower court and interests from the date of dismissal as is the normal practice in all monetary compensation judgements. It was his case that the judgement did not make any reference to the 3rd appellant who was in Embu HCCA No 67 of 2016 Agapius Nyaga Njeru & Nicholas Kirimi Muthumbi v The Hon attorney General hence the judgment should be amended in both title and also contents to include his submissions, assessment of reasonable damages, costs and interests.

4. The respondent in opposition filed grounds of opposition dated September 22, 2022 wherein it was stated that the application dated July 5, 2022 is bad in law and an abuse of the court process and therefore ought to be dismissed. That if indeed the court made an error in its judgment, it would have rectified the same on its own motion before delivery of the same and further, the judgment of the court reflected the intention of the court given that it better understood the matter than the trial court. It submitted that the applicants/appellants therefore should not second guess the intention of the court.

5. The court gave directions that the application be canvassed by way of written submissions and only the respondent complied with the directions.

6. The respondent submitted that the power of the court to amend or rectify any clerical or arithmetic errors is provided for under Section 99 of the Civil Procedure Act and that courts have gone further to set out guidelines which govern the circumstances under which the court can exercise its jurisdiction in that regard. Reliance was made on the case of Vallbhadas Karsnadas Raniga v Mansukhlal Jivraj & Others [1965] EA 780. That a plain reading of the section shows that the court has power both under the rules of court and inherent powers to correct only clerical or arithmetic mistakes in judgments, decree or orders arising from any accidental slip or omission.

7. That in the case herein, the alleged mistake does not fall within the parameters provided by the law. It was submitted that the applicant herein ought to have moved the court via review in reference to provisions of Order 45 Rule 1. The respondent relied on the case of National Bank of Kenya Limited v Ndungu Njau Civil Appeal No 211 of 1996. In the end, it was prayed that the application herein be dismissed with costs to the respondents.

8. The general rule is that upon delivery of judgement, the Court becomes functus officio. The exceptions that are relevant to the case before this Court were settled in the case ofRepublic v Attorney General & 15 Others, Ex-Parte Kenya Seed Company Limited & 5 others [2010] eKLR, where the Court held that:-“27. It is a codification of the common law doctrine dubbed ‘the Slip Rule’, the history and application of which has a wealth of authorities both locally and from common law jurisdictions. It is a rule that applies as part of the inherent jurisdiction of the Court, which would otherwise become functus officio upon issuing a judgment or order, to grant the power to reopen the case but only for the limited purposes stated in the section.28. Some of the applications of the rule are fairly obvious and common place and are easily discernible like clerical errors, arithmetical mistakes, and calculations of interest, wrong figures or dates. Each case will, of course, depend on its own facts, but the rule will also apply where the correction of the slip is to give effect to the actual intention of the Judge and/or ensure that the judgment/order does not have a consequence which the Judge intended to avoid adjudicating on.”

9. The application is brought under Sections 80, 99A & 100 of the Civil Procedure Act together with Orders 51 Rules 1, 2 and 3, Order 45 Rules 1, 2 & 3 of the Civil Procedure Rules. Section 80 which 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 judgement to the Court, which passed the decree or made the order, and the Court may make such order thereon as it thinks fit”

10. The procedure is set out in the procedural legislation under Order 45 of the Civil Procedure Rules as follows;“(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(c.)on account of some mistake or error apparent on the face of the record, or(d)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.”

11. An error within the meaning of Section 80 and Order 45 of the Civil Procedure Act was defined in the case of National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR, the Court of Appeal as thus:-“A review may be granted wherever 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”.

12. 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 (1979) eKLR;“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.”

13. As I have already stated in this ruling, the statutory grounds upon which orders for review can be obtained are; firstly, there ought to exist an error or mistake apparent on the face of the record. Secondly, that the applicant has discovered a new and important matter in 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 order was made. Thirdly, that there is sufficient reason to occasion the review.

14. To the statutory grounds, may also be added 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).

15. It is practically impossible to itemize what would be ‘sufficient reason’ for purposes of review under the courts’ ‘’residual jurisdiction’’ or inherent powers. The exceptional instances when obvious injustice would be caused by a strict adherence to the terms of the order or decree as originally passed are copious.

16. However, given that a review application is not an appeal and must not be allowed to be an appeal in disguise where the merit is revisited, ‘sufficient reason’ ought to include, in my view, the statutory grounds for review as outlined in the Civil Procedure Rules. That ought to be the starting point and a fine guideline.In Muyodi v Industrial and Commercial Development Corporation & Another [2006] 1 EA 243, the Court of Appeal described an error apparent on the face of the record as follows:“In Nyamogo & Nyamogo vs 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 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.”(emphasis mine)

17. In Chandrakhant Joshibhai Patel v R [2004] TLR, 218 it had been held that an error stated to be apparent on the face of the record:“...must be such as can be seen by one who runs and reads, that is, an obvious and patent mistake and not something which can be established by a long drawn process of reading on points on which may be conceivably be two opinions."

18. In the instant case, the error is self-evident on the face of the record itself as shown in the title of the judgment. The error is not one that can be subject of appeal in that it is evident from the record that this court consolidated the appeals to wit Civil Appeal No 66 of 2016 and Civil Appeal No 67 of 2016 but the court inadvertently left out the name of the appellant in Civil Appeal No 67 of 2016.

19. I find guidance in the decision by the supreme court of Uganda inEdison Kanyabwera v Pastori Tumwebaze (2005) UGSC 1, on what constitutes an error apparent on the face of the record, it stated as follows;“It is stated that in order that an error maybe a ground for review, it must be one apparent on the face of the record, i.e. an evident error which does not require any extraneous matter to show its incorrectness. It must be an error so manifest and clear that no court would permit such an error to remain on the record. The error maybe one of fact, but it is not limited to matters of fact, and includes also error of law.”

20. I find that the court mistakenly omitted the name of the 3rd applicant/appellant’s given that the appeals had been consolidated.

21. On the issue that the court awarded low quantum, it is my view that a judge exercising judicial discretion as the case herein, bears the burden of accounting for their decision and in order to discharge the burden, the judge ought to explain. [SeeKridha Limited v Peter Salai Kituri eKLR].

22. In the case herein, it is clear the court gave its reasons for awarding the amount it did and there is no evidence adduced to support the alleged claim by the applicants. That if the applicants are of the view that the damages awarded are low, the best option was to challenge the same by way of appeal and not by review.

23. On the issue that the 3rd appellant was omitted in the said judgment, of importance to note is the fact that the two files herein as already noted were consolidated and as such, the 3rd appellant equally ought to have featured in the determination made by the court. In deed the court determined the appeals but omitted the said appellant’s recourse as it categorically indicated the recourses of the 1st and 2nd appellants. For it has been established that he indeed participated in the said appeal and it cannot be said that the 3rd applicant/appellant is second guessing the intention of the court.

24. From the evidence, the 3rd appellant was arrested on May 16, 2013 and presented before the court on May 17, 2013 and that he was later acquitted of the alleged charges. As the court already established, the prosecution was actuated with malice as there was no probable and reasonable cause for the same. The court also noted that the 3rd appellant was charged on May 17, 2013 and acquitted on July 24, 2013; the trial thus took a period of two months to finalize and further, he was out on bond during the whole period of trial. I hold that the 3rd appellant ought to be awarded nominal damages of Kshs 100,000/=.

25. On the issue of costs and interests and whether the same is to be calculated from the date of dismissal of the two suits in the lower court on July 24, 2013, Section 26 of the Civil Procedure Act provides for interest on the principal sum awarded by the Court and interest on costs of the suit as follows:(1)Where and in so far as a decree is for the payment of money, the court may, in the decree, order interest at such rate as the court deems reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree in addition to any interest adjudged on such principal sum for any period before the institution of the suit, with further interest at such rate as the court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date of payment or to such earlier date as the court thinks fit.(2)Where such a decree is silent with respect to the payment of further interest on such aggregate sum as aforesaid from the date of the decree to the date of payment or other earlier date, the court shall be deemed to have ordered interest at 6 per cent per annum.

26. In the case of Mukisa Biscuits Manufacturing Co Ltd v West End Distributors Limited (No 2) [1970] EA, 469 at 475, Spry V P states as follows:-“The principle that emerges is that where a person is entitled to a liquidated amount or to specific goods and has been deprived of them through the wrongful act of another person, he should be awarded interests from the date of filing suit. Where, however, damages have to be assessed by the Court, the right to those damages does not arise until they are assessed and therefore interest is only given from the date of the judgment.”

27. Needless to say, the rationale for an award of interest on the principal sum is to compensate a plaintiff for the deprivation of any money that is rightfully due to it through the wrongful act of a defendant. Thus, in Highway Furniture Mart Ltd v Permanent Secretary Office of the President & Another [2006] eKLR the point was made thus:“The justification for an award of interest on the principal sum is to compensate a Plaintiff for the deprivation of any money, or specific goods through the wrong act of a defendant."

28. Likewise, in Lata v Mbiyu[1965] EA 392 it was held that:“The award of interest on a decree for payment of money for a period from the date of the suit to the date of the decree is a matter entirely within the court’s discretion, by section 26 of the Civil Procedure Act but such discretion must, of course, be judicially exercised…It is clearly right that in cases where the successful party was deprived of the use of goods or money by reason of a wrongful act on the part of the defendant, the party who has been deprived of the use of goods or money to which he is entitled should be compensated for such deprivation by the award of interest.”[See Ajay Indravadan Shah v Guilders International Bank Ltd [2003] eKLR; also Dipak Emporium v Bond's Clothing [1973] EA 553].

29. From the provisions of Section 26(1), the court can award interest in the following instances;i.From any period before the institution of the suit.ii.From the date of filing the suit.iii.From the date of the decree.[See Jane Wanjiku Wambu v Anthony Kigamba Hoto & Others, (2018) eKLR].

30. In any event, in our jurisdiction, the normal rule is that interest on costs begins running from the date of the judgment or order containing the entitlement to costs. Interest on costs cannot begin at an earlier date before the Court pronounces entitlement to those costs. [SeeJane Wanjiku Wambu v Anthony Kigamba Hato & 3 others [2018] eKLR].

31. Having found that the applicant has satisfied this court that there was an error apparent on the face of the record, I find that the only orders commendable to me are:i.The 3rd appellant be and is hereby included in the judgment.ii.The 3rd appellant is hereby awarded Kshs 100,000/=.iii.The damages awarded in the sum of Kshs 100,000/= will attract interest at the prevailing court rate from 02. 06. 2022. iv.The costs of the appeal and that of the trial court are awarded to the appellants.

32. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 7TH DAY OF DECEMBER, 2022. L. NJUGUNAJUDGE…………………………………..…..….for the Appellant………………………………………for the Respondents