[2023] KEHC 24758 (KLR)

Omurembe v Samo Limited & 3 others (Civil Case E024 of 2023) [2023] KEHC 24758 (KLR) (Commercial and Tax) (30 October 2023) (Ruling)

Neutral citation: [2023] KEHC 24758 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts)

Commercial and Tax

Civil Case E024 of 2023

JWW Mong'are, J

October 30, 2023

Between

Lorna Agnes Onyango Omurembe

Plaintiff

and

Samo Limited

1st Defendant

Omurembe Iyadi

2nd Defendant

Chase Bank Limited

3rd Defendant

SBM Bank Limited

4th Defendant

Ruling

1. The 3rd & 4th Defendants, on 2nd November 2022, filed a Notice of Motion brought under Order 45 Rule 1 of the Civil Procedure Rules, and section 1A, 1B and 3A of the Civil Procedure Act, seeking to set aside the Ruling of this Honourable Court issued on 19th October 2022. The Defendants also sought for the costs of the application.

2. The application was supported by the grounds set on its face and the supporting affidavit of Kevin Kimani, the legal officer of the 3rd Defendant, sworn on 2nd November 2022. The Plaintiff, Lorna Agnes Onyango Namurembe, opposed the said application and filed a Replying Affidavit sworn on 12th January 2023.

3. The Applicants contends that there is an error apparent on the face of the record on the ruling of this court of 19th October 2022. It is the Applicants’ position that the court in considering the application failed to take into considerations its response and annextures filed thereto and urges this court to review the said ruling and factor in its response and annextures and make a justiciable determination. The Applicants argued that the Court is empowered to review its own ruling and correct any errors apparent on the face of the record by dint of Order 45 of the Civil Procedure Rules.

4. In opposing the application, the Respondent sought to rely on her submissions filed in the matter and dated 9th July 2023. The Respondent argued that the application for review was unmerited and that there was no error apparent on the face of the record. That the suit was heard and determined by this court on merit and the matters now being raised in this application, having been considered by the court in the previous application, are now rendered res judicata. The Respondent urged the court to dismiss the application as the same was devoid of merit and fell short of the threshold for grant of an order of review on the said grounds.

Analysis and Determination 5. I have considered the rival arguments by the parties in the present application. Order 45 of the Civil Procedure Rules, upon which this application is premised provides 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; 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.(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,(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 Applicants and the appellant, or when, being Respondent, he can present to the appellate court the case on which he applies for the review.”

6. In considering whether indeed there was an error apparent on the face of the ruling sought to be reviewed, I have read carefully the said ruling. The argument by the 3rd and 4th Defendants are that the court failed to consider its response and the annextures thereto and that had it done so, the court would have returned a finding that this matter was res judicata.

7. The Defendants argue that they had provided evidence that the issues before the court that the issues in this matter had been determined in a related matter in HCCOMM Civil Case No. 244 of 2019 - Samo Security Limited & Omurembe Vs. Sbm Bank (k) Limited. The Applicants argue that from a reading of the ruling it is clear that the court failed to consider their submissions and annextures and the said failure to was prejudicial to their case.

8. I have read the said ruling and note that the court at paragraph 4 of the said ruling, the court stated as follows “parties canvassed the application by way of written submissions which I have considered.” It is therefore not correct, in my view, for the Applicants to state that the Court failed to consider its responses. In my mind, it appears that the 3rd and 4th Defendant had a predetermined outcome which they expected from the court. Having not obtained the same, the Applicants have by this application sought to reopen their arguments, in order to drive the court to arrive at a favourable determination in their favour. This is in my view, is not an option available to the Applicants at this point. The only available option to the applicant would have been to file an appeal if they wish to overturn the said ruling. A ruling of a court of law is a synthesis of the pleadings of all parties and the supporting affidavits submissions and supporting authorities and the courts own opinion based on the consideration of the law and facts presented before it. There is no requirement that a court is expected to state all those documents which it has considered in its determination, in my view, and failure to cite any of such, does not and cannot by any stretch of imagination be deemed to accession an error on the face of the record as per the provisions of Order 45 of the Civil Procedure Rules.

9. The sum total of my findings is that the application as filed is without merit and I shall dismiss the same with costs to the Respondent.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF OCTOBER 2023. ........................................J. W. W. MONG’AREJUDGEIn the Presence of:-1. Mr. Amolo for the Plaintiff.2. Mr. Kuloba for the 1st and 2nd Defendants.3. Mr. Obura for 3rd and 4th Defendants.4. Amos - Court Assistant