[2020] KEHC 721 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

COMMERCIAL AND TAX DIVISION

HCCC NO. 600 OF 2015

QUORANDUM LIMITED......................................... PLAINTIFF/RESPONDENT

-VERSUS-

INVESCO ASSURANCE COMPANY LIMITED.....DEFENDANT/APPLICANT

RULING

1. Through the application dated 9th March 2020, the Defendant/Applicant seeks to review the decree arising from judgment delivered on 24th January 2019.

2. The application is supported by the affidavit of the applicant’s Legal Manager Mr. Paul Gichuhi and is premised on the grounds that: -

1. That the plaintiff herein file suit against the defendant seeking compensation for auctioned goods pursuant to judgment entered in Nairobi CMCC No. 2584 of 2007; Vincent Mulwa Mutiso vs Quorandum Limited for Kshs 329,458. 50.

2. However, the auctioned goods were alleged to be worth Kshs 8,752. 340.

3. That the defendant instructed the firm of Anne W. Kimani and Company Advocates who entered appearance and acted on their behalf until the matter was finalized and judgment entered on 24th January 2019.

4. That judgment was entered to the tune of Kshs 13,736,641. 73 to which warrants of attachment dated 20th February 2020 has been issued to Recovery Concepts Auctioneers.

5. That the defendant/applicant now seeks stay of execution and review of the said judgment on the grounds that;

a. There is a limit of indemnity under the policy noting that the claim is a workman compensation.

b. There is an element of bad sale by the auctioneer since the decretal amount was Kshs 329,458. 50 yet the sale was done for goods alleged to be over Kshs 8 million.

c. That the suit ought to be against the said auctioneer for effecting a bad sale.

d. That the plaintiff being the insured was not vigilant in filing the suit as the goods were sold in 2012 yet the matter was filed in 2015.

e. There is a lapse in management systems and therefore the breakdown in management led to the defendant suffering grievous injustices occasioned by the judgment issued on 24th January 2019.

3. The Plaintiff/Respondent filed Grounds of Opposition in response to the application.

4. Parties canvassed the application by way of written submissions which I have considered. The main issue for determination is whether the applicant has made out a case for the granting of orders of review.

5. The application is brought under Order 45 of the Civil Procedure Rules which stipulates as follows: -

“[Order 45, rule 1. ] Application for review of decree or order.

1. (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.”

6. InEvan Bwire v Andrew Aginda Civil Appeal No. 147 of 2006 cited fin the case of Stephen Githua Kimani v Nancy Wanjira Waruingi T/A Providence Auctioneers (2016) eKLR the Court of Appeal Held as follows:

“An application for review will only be allowed on strong grounds particularly if its effect will amount to re-opening the application or case afresh. In other words, I find no material before me to demonstrate that the applicant has demonstrated the existence of new evidence which he could not get even after exercising due diligence.”

7. In the instant case, I find that the applicant has not demonstrated that it has discovered new and important matter or evidence that was not in its knowledge at the time the matter was heard so as to justify the granting of orders for review. The applicant has also not established that there was any error on the face of the record to be corrected through the review.

8. The applicant argued that the application falls under the ground of “any other sufficient reason” for granting orders for review as stated under Order 45 Rule 1(1) (b). Reliance was placed on the decision in Shanzu Investments Ltd v Commissioner of Lands[1993] eKLR which was invoked and applied in Wangechi Kimata & Another v Charan SinghC.A. No. 80 of 1985 (unreported) wherein the court held: -

“Any other sufficient reason need not be analogous with the other grounds set out in the rule because restriction would be a clog on the unfettered right given to the court by Section 80 of the Civil Procedure Act; and that the other grounds set out in the rule did not in themselves from a genus or class of things which the third general head could be said to be analogous.”

9. The applicant argued that the review sought falls under sufficient reasons as there was a limit for indemnity under the Workmen’s Compensation Policy and that whereas the decretal was Kshs 329,458. 50, the auctioned goods were alleged to be worth Kshs 8,752,340.

10. The applicant also faulted the respondent for not being vigilant in filing the suit and blamed the lapse in the management systems that led to grave injustice.

11. I have considered the grounds listed by the applicant for review and I am not persuaded that they fall under the classification of “any other sufficient grounds” for granting the said orders. To my mind, the grounds could form a basis for an appeal if not a suit against the auctioneers regarding the alleged disparity between the decretal sum and the value of the auctioned goods.

12. In a nutshell, I am not satisfied that the application meets the threshold for the granting of orders for review.

13. On the prayer for stay of execution, I note that the said stay was sought pending the hearing of this application in which case, the prayer is already spent.

14. For the reasons that I have outlined in this ruling, I find that the application is not merited and I therefore dismiss it with costs to the respondent.

Dated, signed and delivered via Microsoft Teams at Nairobi this 3rd day of December 2020 in view of the declaration of measures restricting court operations due to Covid - 19 pandemic and in light of the directions issued by his Lordship, the Chief Justice on the 17th April 2020.

W. A. OKWANY

JUDGE

In the presence of:

Mr. Biko Angwenyi for Plaintiff.

Miss Njogu for Kimere for Defendant/Applicant.

Court Assistant: Sylvia