[2023] KEHC 24963 (KLR)

Ouru Super Stores Limited v Buyaki & another (Suing as the Legal Representatives of the Estate of Omambia N. Ogutu - Deceased) (Civil Appeal 18 of 2020) [2023] KEHC 24963 (KLR) (7 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24963 (KLR)

Republic of Kenya

In the High Court at Kisii

Civil Appeal 18 of 2020

PN Gichohi, J

November 7, 2023

Between

Ouru Super Stores Limited

Appellant

and

Mary Buyaki

1st Respondent

Samwel Okenyuri Ogutu

2nd Respondent

Suing as the Legal Representatives of the Estate of Omambia N. Ogutu - Deceased

Ruling

1. By a Notice of Motion Application dated 13th June 2022 and filed on 24th June 2022, brought under Section 1A, 1B and 3A of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, the Respondents/ Applicants pray :-That the Honourable Court be pleased to review the judgment and decree herein issued on 16/03/2022 and pronounce itself on the issue of interest on the decretal sum and costs at the trial court;Costs of the Application be provided for.

2. The Application is supported by the grounds on the face of it and by the Supporting Affidavit of one of the Respondents Mary Buyaki, herein. The gist of the Application is that by judgment of this court delivered on 16th March2022 (MB1), the trial court’s findings on liability and quantum set aside and substituted with a finding as on liability in the ratio of 50:50 and quantum was awarded at Kshs. 444,904. 00. That in granting the award on damages, this Court did not address itself as to costs and interest, yet the same was granted by the trial court.

3. The Applicants contended that they were entitled to costs assessed mutatis mutandis based on the quantum substituted from the trial court. They annexed the certificate of costs of the trial court (MB2). They observed that since the Respondent in this Application opined that the Applicants were not entitled to the same from this court’s silence on costs and interests, and had since settled the decretal sum, it was necessary for this court to review its judgment and clarify the issue of costs and interest on the decretal sum . For this reason, the Applicants prayed that the Application be allowed as prayed.

4. The Appellant, who is the Respondent to the Application, opposed that Application vide its Grounds of Opposition dated 27th June 2022 and filed on 28th June 2022. It contended that the Application is premature, mischievous, misconceived, bad in law, untenable and an abuse of the process of the Court.

5. It added that this Court is functus officio since no grounds have been adduced to warrant this Court to review its own judgment on account of new piece of evidence or any other sufficient cause as set out in Order 45 of the Civil Procedure Rules. It opined that the judgment was bereft of error. Finally observed that the Application was filed 90 days after the impugned decision was delivered and that was unreasonable delay.

6. Parties were directed to canvass the Application by way of written submissions. In their submissions dated 30th December 2022 and filed on 8th February 2023, the Applicants argued that the issue at hand was not functus officio contrary to what the Respondent had advanced.

7. The Applicants submitted that the trial court exercised its discretion as provided in Section 27 (1) of the Civil Procedure Act and awarded costs. That the said award on costs was not interfered with since this court only interfered with the award on general damages. For those reasons, the Applicants submitted that this court’s silence as to the award on costs was intended to award costs as awarded by the trial court.

8. Citing Section 26 and 27 (2) of the Civil Procedure Act, the Applicants then submitted that they were entitled to interest at the rate of 14% per annum from the date of judgment before the trial court, that is 29/05/2019. They submitted that they automatically acquired the right to earn interest because they were a successful litigant.

9. On 14th February 2023, the Respondent filed its written submissions dated 11th April 2023. While citing several decisions on the doctrine of functus officio, the Respondent submitted that the Court pronounced itself substantively on 16th March 2022 and therefore, that which is deemed not given is in fact not given.

10. Further, the Respondent referred to the wording of Order 45, Rule 1 of the Civil Procedure Rules, and submitted that no reasons were furnished in fulfilment of the said provision to warrant this court to exercise its discretion as set out therein. In its view, the Applicants were engaging in a fishy expedition without any basis in law.

11. Lastly , the Respondent submitted that the Applicants’ remedy lay in filing a second appeal at the Court of Appeal. It urged the Court to dismiss the Application.

Determination 12. After considering the application herein and the arguments by parties herein as reflected by the material placed before this Court, the issue for consideration is whether the Applicant’s have made a case for review of the judgment dated 16th March 2022 . Order 45 of the Civil Procedure Rules provides:-(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.(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.

13. A look at the judgment dated 16th March 2021 shows that the lower court’s judgment was set aside and substituted. If set aside totally and substituted, it left no room for any other form of interpretation other than the fact that the findings of this Court were final. There can be no argument about costs and interest awarded by the lower court as with finality, the judgment disturbed the entire award to including costs and interest.

14. An award of costs is discretionary and indeed , the Court pronounced itself on the issue of costs in that it stated: “The Appellant shall have half the costs of the appeal.” There is no mistake or error in that judgment to call for review.

15. The Applicant’s argument that the Court did not dismiss the entire suit before the trial court but only reviewed the amount to be awarded hence an indication that the Applicant’s claim before the trial court was still successful does not add up in the circumstances. Once the Court pronounced itself in the manner it did, it became functus officio.

16. What is clear is that the Applicants are challenging the decision of this Court not to award costs. Further , they purport that they were entitled to 14% per annum interests, against the initial award of 8%. These are issues that cannot be canvassed by this Court. As rightly pointed out by the Respondent, the Applicants’ remedy lies in an appeal to the Court of Appeal.

17. For those reasons, the Application dated 13th June 2022 is devoid of merit. It is hereby dismissed but with no orders as to costs.

DATED, SIGNED AND DELIVERED AT KISII (VIRTUALLY) THIS 7TH DAY NOVEMBER,2023. PATRICIA GICHOHIJUDGEIn the presence of:N/A for AppellantMs Kusa for RespondentAphline , Court Assistant