[2023] KEHC 26563 (KLR)

Republic v Town Clerk City Council of Nairobi & another; Iris Properties Limited & another (Exparte) (Application 433 of 2009) [2023] KEHC 26563 (KLR) (Judicial Review) (15 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26563 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Application 433 of 2009

J Ngaah, J

December 15, 2023

Between

Republic

Applicant

and

Town Clerk City Council of Nairobi

1st Respondent

City Council of Nairobi

2nd Respondent

and

Iris Properties Limited

Exparte

Poland Limited

Exparte

Ruling

2. The application before court is the applicants’ motion dated 22 May 2023. It is brought under section 1A, 1B and 3B of the Civil Procedure Act cap.21 and order 45, 51 rule 1 of the Civil Procedure Rules. It seeks the following orders:1. That this honourable court be pleased to review and set aside the ruling delivered be (sic) the honourable C.A. Muchoki, deputy regisrar on April 7, 2021. 2.That this honourable court be pleased to upholding the applicant’s computation of debt owing in the sum of Kes 77,005,596. 23/= prepared by CM Maingi & Co Certified Public Accountants, dated January 31, 2021 and filed in this court on February 1, 2021. 3.The costs of the application be provided for.”

2. The application is supported by the affidavit of Fredrick K. Mungai .

3. According to Mungai, sometime in June 2016 the respondents raised a dispute over the exact amount payable on a decree which the applicants had obtained against the respondents. The amount then owing, according to the applicants, was the sum of Kes 143,717,791/=. The respondents, however, insisted that the amount owed to the applicant was the sum of Kes 10,083,794/=.

4. At this honourable court’s direction, the deputy registrar, calculated the amount due and upheld the applicant’s computation.

5. Subsequently, and in particular on 9 November 2016, the parties recorded a consent to the effect that the decretal sum of Kes 143,717,791/= would be paid by monthly instalments of Kes 7,000,000/= till payment in full. The respondents paid the instalments for a few months but then fell into arrears.

6. After the applicant set in motion the execution proceedings against the respondents, the latter, for a second time, made an application for the deputy registrar to compute the outstanding amount as at the time the application was made.

7. On 11 December 2020, the Honourable Nyamweya, J, as she then was, ordered parties to appear before the deputy registrar within 6 days to compute the decretal sum and interest due. In support of their case, the applicants instructed M/s CM Maingi & Co, an accounting firm, to compute the outstanding debt. The firm prepared a report dated 31 January 2023 which the applicants filed in court on 1 February 2021. According to this report, the amount due to the applicants was Kes 77,005,596. 23 as at 31 January 2021.

8. On April 2021 the deputy registrar, honourable CA Muchoki, delivered a report in which she found that the amount owing to the applicants was the sum of Kshs. 7,638,778/=.

9. It is the applicants’ position that the learned deputy registrar erred in her ruling by failing to take into consideration the consent order of 9 November 2016 and the parameters set by the learned judge in her directions on the computation of the amount due. The applicants, therefore, content that the deputy registrar’s ruling is tainted by an apparent error on the face of record. They, therefore, urge that the computation be set aside and that this honourable court applies the amount computed by the applicant’s accountants as due and owing to the applicants.

10. The respondents opposed the motion and in that regard filed a replying affidavit sworn on their behalf by WS Ogola, who has described himself as the “respondents’ County solicitor.”

11. According to Ogolla, there is no mistake or any error apparent on the face of record to warrant the invocation of this court’s jurisdiction to review the ruling of the learned Deputy registrar delivered on 7 April 2021. Again, it has not been demonstrated that the applicants have discovered any new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge or could not have been produced by them at the time when the ruling was made.

12. The application should also fail because it has been made after inordinate delay considering that the registrar delivered a ruling on 7 April 2021 and instant application was made on 22 May 2022.

13. On the dispute of the amount payable, the respondents have contended that in a ruling delivered on 18 August 2016, the learned deputy registrar held that “the amount due is per the order by Justice Jean Gacheche made on 17th March 2011 less the amount paid so far, the interest shall proceed to accrue till payment in full per the court’s order.”

14. The deputy registrar did not pronounce herself on the exact amount due and, at no time did the respondents ever consent that they owed the applicants the sum of Kes 143,717,791/=. In the ruling delivered by the deputy registrar on 7 April 2021 she held that the amount due to the applicants was Kes 7,638,778. 75 which has been paid. As a matter of fact, the amount paid over and above what is rightly due is Kes 22,841,619. 90.

15. I have considered the application the response thereto and the submissions filed by the parties.

16. It is not in dispute that on 11 December 2020, Nyamweya, J. as she then was, directed the deputy registrar of judicial review division of this honourable court to compute the sums, if any, of the decretal sum and interests thereon that is still owing to the to the ex parte applicants on a decree the latter had obtained against the respondents.

17. The deputy registrar complied and filed her report on what she thought were the correct computations of what the respondent owed the applicant.

18. In her report dated 7 April 2021, the deputy registrar came to the conclusion that the outstanding amount was Kes 7,638,778. 75.

19. The background of the direction of the learned judge to the deputy registrar is an order of mandamus made by this Honourable Court (Gacheche, J) on 17 March 2011 according to which the Town Clerk of the then city council of Nairobi was compelled to pay the ex parte applicants a decretal sum of Kes 35,000,000/= and interest compounded at the rate of 12% per annum from 25 September 2002 until payment in full. To quote the learned judge:…I do in the circumstances grant the two companies an order of mandamus compelling the Town Clerk, City of Nairobi, to pay the decretal sum of Kes 35,000,000. 00.

20. In view of the fact that had the respondents deposited the sum of the award as ordered on 25. 9.2002, interest would have accrued on the sum from then onwards, there would be no reason to deny the companies that element of interest and I do order that the respondents shall pay interest on the stated sum compounded at court interest rates of 12% pa from 25. 9.2002, when they were ordered to deposit the sum of the award, till payment in full.”

22. It is, therefore, not surprising that the base figure which the deputy registrar adopted in her computation was Kshs. 35,000,000. She applied the rate of 12% as the rate of interest and came to the conclusion that, upon deduction of the amount paid, the amount due, as at 7 April 2021, was Kshs. 7,638,778. 75.

23. If, as the applicants allege, that the learned deputy registrar erred in her ruling because she “failed to compute within the parameters of the order of lady justice Pauline Nyamweya and in accordance with the consent order dated 9th November thus reaching the wrong conclusion that the applicants had failed to disclose the amount of money paid to them” and, therefore, “it is in the interest of justice that the said ruling of the deputy registrar, be set aside and the competition by M/s CM Maingi & Co Certified Public Accountants upheld” the proper course to take would have been an appeal and not an application for review.

24. The effect of the applicant’s depositions is that the learned deputy registrar neither appreciated the evidence nor the law properly and hence arrived at the wrong decision.

25. Even if I was to assume that the applicants are right, neither of these reasons can be grounds for review. If the applicants are of the firm view that the court misapprehended the law or misdirected itself on facts, or that its decision was patently wrong, a proper recourse would have been to appeal against that decision.

26. In Abasi Balinda v Fredrick Kangwamu &another (1963) EA 558 a court was asked to review its order on costs on the ground that the court was alleged to have taken an erroneous view of the evidence and of the law relating to the question of whether a returning officer was a necessary party to an election petition. The court (Bennet, J.) appreciated that section 83 of the Uganda Civil Procedure Ordinance (equivalent to section 80 of our Civil Procedure Act) conferred upon the court jurisdiction to review its own decisions in certain circumstances and order 42 (which is equivalent to order 45 of our Civil Procedure Rules) prescribed the conditions subject to which and the manner in which the jurisdiction should be exercised. In interpreting that jurisdiction and in the process, dismissing the applicant’s application, the court cited with approval a passage from Commentaries on the Code of Civil Procedure by Chitaley & Rao (4th Edition), Vol. 3 page 3227, where the learned authors explained the distinction between a review and an appeal and had this to say;a point which may be a good ground of appeal may not be a ground for an application for review. Thus, an erroneous view of evidence or law is no ground for review though it may be a good ground for an appeal”

27. Again, our own Court of Appeal explained this much better in National Bank of Kenya Ltd v Njau (1995-1998) 2EA 249 (CAK); at page 253 of the judgment, the Court said: -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 of 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 the law cannot be a ground for review.” (Underlining mine).

28. I need not say anything more on this except to state that the applicants’ application is, at the very least, incompetent, misconceived and an abuse of the due process of this honourable court.

29. One other ground upon which the applicants application uphold fall is that no reason has been given why it took the applicants more than two years since the delivery of the impugned ruling to file the present application. Order 45 rule 1(1) of the Civil Procedure Rules which the applicants invoked in their application is particular that the applicant must be made timeously. The rule reads 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 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 fora review of judgment to the court which passed the decree or made the order without unreasonable delay. (Emphasis added).

30. If the application was filed after the amount which the deputy registrar had adjudged to be due has been paid, the timing of the application would be suspect. But suspicion or not, a delay of more than two years in filing the application for review is by all means inordinate. Assuming the applicants had any good grounds for review, it would have failed on this ground alone, more so considering that the no reason has been given for the delay.

31. For the reasons given I am inclined to dismiss the applicants’ application. It is hereby dismissed with costs. It is so ordered.

SIGNED, DATED AND DELIVERED ON 15 DECEMBER 2023Ngaah JairusJUDGE