[2018] KEHC 5351 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYERI

MISCELLANEOUS CIVIL APPLICATION NUMBER 87 OF 2017

SAMWEL WERU AND 17 OTHERS.....................APPLICANTS

-VERSUS-

AGUTHI FARMERS COOPERATIVE

SOCIETY LIMITED.............................................RESPONDENT

RULING (2)

I must begin with an apology for the delay in the delivery of this ruling. It was due to circumstances beyond my control. It was not intentional and I make every effort to deliver rulings in time.

The applicants herein were aggrieved by the ruling Imade on 27 November 2017. The offending order was to the effect that the applicants to pay damages of Kenya shillings 1 million plus interest and costs as ordered by the Cooperative Tribunal in CTC number 3 of 2011.

The view of the applicants is that the order of stay of execution granted in the same ruling will be negated if the above order is not reviewed.

The applicants urge the court to review its order and substitute it with an order that the Kenya shillings 1 million be deposited as security for costs in a joint interest earning account in the names counsel for the parties.

The application is opposed because the applicant did not comply with the order to pay the sum of Kenya shillings one million to the respondents as ordered, that the applicants were given conditions which they are yet to comply with, that the orders given on 27th of November 2017 were clear and unequivocal and that there are no grounds for review.

The Notice of Motion is dated 13th of December 2017 and is premised under sections 1A, 1B, 3A and 80(a) and 95 of the Civil Procedure Act, Chapter 21 Laws of Kenya and order 45 rules (1) (a) and 2, and order 51 rule 1 of the Civil Procedure Rules 2010 and all other enabling provisions of the law.

It seeks the following orders;

1. that the application be certified urgent and service thereof dispensed with in the first instance and the same be heard exparte the first instance,

2. that pending the inter partes hearing and determination of this application this honourable court be pleased to grant an order for status quo to be maintained,

3. that the applicants shall deposit the sum of Kenya shillings 1 million as security for costs and not as damages in a joint interest earning account within 30 days,

4. that the account shall be opened in the joint names of counsel for the applicants and counsel for the respondents in a reputable bank to be agreed by all counsel.

In the alternative to prayer (4) above,

5. that if Counsels shall fail to agree on the bank the said sum of Kenya shillings one million as security for costs shall be deposited with the registrar of this court within 30 days.

6. that the deposit of Kenya shillings 1 million as security for costs shall be made within 30 days and in default the injunction already granted shall automatically lapse and be discharged

7. that the costs of and incidental to this application be costs in the intended appeal

8. the honourable court be pleased to make such further orders as it may deem just and expedient in the circumstances of this case.

The grounds for the application as set out on the face of the application are that;

1. the applicants are fractionally dissatisfied with the ruling of lady justice Teresia Matheka delivered on 27th of November 2017 in this matter in the application for extension of time and stay of execution.

2. In the aforesaid ruling the learned judge ordered the applicants to inter alia pay the respondent the damages of Kenya shillings 1 million plus costs and interest accrued from the date of the order and outstanding at the date of this order within 30 days hereof and in default they be evicted,

3. the main issue taken into consideration by the learned judge in making the said ruling was the fact inter alia that Gaaki Central farmers’ cooperative society (herein after Gaaki coffee factory) where the applicants are members is a going concern and anything due to the respondent will be available from the accounts of Gaaki coffee factory

4. further to (3) above the other consideration was in the learned judge’s view that the respondent would not be unable to refund the anything to it as it is also a going concern,

5. the applicants are justifiably apprehensive that the learned judge’s ruling in favour of the applicants herein will be fruitless if the foresaid order for payment of damages plus interest is left as it is and will be detrimental to them and negate the very purpose of filing the application for stay of execution in the first place,

6. in this regard the applicants implore her ladyship by the application filed herewith to order the sum of Kenya shillings 1 million as security for costs and not be paid as damages to be deposited in a joint interest earning account in the name of counsel for the applicants and counsel for the respondent

7. if this order is left as it is, it will render the stay of execution order sought by the applicants granted by your ladyship futile and in vain as it is at the heart of the impugned ruling of the Cooperative Tribunal in CTC number three of 2011

8. the applicants are ready willing and able to comply with the said ruling upon the same being reviewed as prayed in the application filed herewith

9. in view of the foregoing there is good and sufficient cause for the review of the said ruling as prayed

10. it is therefore in the interests of justice that this honourable court to hear and determine this application expeditiously

The application is supported by the affidavit of Hassan Abdiaziz counsel for the applicant.

The applicant relies on the following authorities;

1. Anita Chelagat O’Donovan & 2 others vs. Frederick Kwame Kumah &2 others [ 2016] eKLR

2. Housing Finance Company of Kenya vs. Sharok Kher Mohamed Ali Hirji & another [2015] eKLR

3. Royal Media Services Limited vs. Veronica Chepkemoi [2015] eKLR

4. Stephen M Mwangi &2 others vs. Albert Wesonga [2017] eKLR

The respondent opposed the application through the replying affidavit of its chairman James Wachira Ndiang’ui sworn on 3rd February 2018.

He pointed out several issues;

1. that the applicants have not complied with the orders of this court made on 27th of November 2017

2. that the applicants were given 30 days within which to file and serve an appeal but they had not done so by 3rd February 2018

3. that the applicants were seeking orders from this court that would only be obtained through an appeal and this court cannot sit on appeal of its own orders

4. this court had not granted an injunction and therefore prayer number six was totally misconceived

Mr. Abdiaziz appeared for the applicants and Mr. Macharia for the respondents.

Arguments for applicant:

Counsel for the for the applicants submitted that this court on 31st of August 2017 allowed the whole application granting an order for extension of time to file an appeal and stay execution in CTC 3 of 2011. That the subsequent ruling where the applicants were ordered to pay Kenya shillings 1 million in default of which the order of is execution would lapse aggrieved the applicants. That this court has many times decided that suit monies be deposited in joint interest earning accounts. (See Anita Chelagat paragraph 26). That the orders of 27th of November 2017 rendered the appeal nugatory and amounted to a contradiction of this court’s own orders, that the applicants will suffer loss, and would not enjoy the stay of execution granted.

Turning to the respondent’s replying affidavit, counsel submitted that the respondents are not opposed to the money being deposited into a joint interest earning account.

Arguments for respondent

It was argued that this court granted a partial conditional stay of execution which is perfectly within its jurisdiction under the principles order 42 rule 6 of the Civil Procedure Rules.

The fact that the applicants are dissatisfied with this court’s ruling is a ground for appeal and not a ground for review

That the applicants have not put themselves into the purview of order 45 of the Civil Procedure Rules: they have not shown that there is a new and important matter of evidence which was not within their knowledge; they have not shown that there is an error apparent on the face of the record; neither have they established sufficient reason to warrant a review.

Further that the understanding of the respondent was that the stay was given in respect of the eviction; the giving of vacant possession of the factory to the respondent but no stay was granted in respect of the damages.

Even further, that the authorities relied on by the applicant are not applicable to this case as they distinguishable because they are in respect of the principles on stay of execution both in the Court of Appeal and in the High Court and they have nothing to do with the review applications under section 80 of the Civil Procedure Act and order 45 of the Civil Procedure Rules.

It was also submitted that the applicants are confusing two concepts; the concept of security for costs and the concept of security for the performance of a decree. Counsel urged the court to dismiss the application.

Applicant’s rejoinder

In his rejoinder counsel for the applicants submitted that it was not true that the applicants were dissatisfied with the ruling of this court. The ruling was indeed in their favour. The only problem was the wording. Further that the notion that stay of execution was conditional is not true. That though security for the performance of a decree is an order at the discretion of the court, it was in the interests of justice that the ruling be reviewed before the applicants could lodge their appeal so that both parties would be at par.

Analysis and Determination.

I have carefully considered the affidavit evidence, submissions by both counsel and the authorities relied on by the applicant.

Applications for review are provided for under s. 80 of the CPA and order 45 of the civil procedure rules 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)……………………………………………………………………

may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.

Order 45 on application for review of decree or order provides inter alia

(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. (emphasis added)

The applicants here in relying on rules 1 (a) and (2).

The issue for determination is whether the applicants have fulfilled the requirements for review under the cited provisions of the law.

I have perused through the authorities cited and quite clearly they deal with the issue of stay of execution pending appeal and are therefore distinguishable.

I find guidance in Stephen Gathua Kimani v Nancy Wanjira Waruingi t/a Providence Auctioneers [2016] eKLR whereMativo J discussed the issue of review at great length citing various authorities.

In this case it was argued by the respondent that the matters raised by the applicant could only be dealt with by way of an appeal. It is therefore necessary to distinguish the two. In the matter above Mativo J cited National Bank of Kenya Ltd vs Ndungu Njau {1996} KLR 469 (CAK) at Page 381where the court made distinction thus:

“In my discernment, an order cannot be reviewed because it is shown that the judge decided the matter on a foundation of incorrect procedure and or that his decision revealed a misapprehension of the law, or that he exercised his discretion wrongly in the case. Much less could it be reviewed on the ground that the other judges of coordinate jurisdiction and even the judge whose order is sought to be reviewed have subsequently arrived at different decisions on the same issue? In my opinion the proper way to correct a judge’s alleged misapprehension of the procedure or the substantive law or his alleged wrongful exercise of discretion is to appeal the decision unless the error be apparent on the face of the record and therefore requires no elaborate argument to expose.” (Emphasis added).

The same court further stated that;

“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.” (emphasis added)

It was submitted that the wording of the impugned order was sufficient reason to warrant the review sought. The grounds for the review as set out on the face of the application are telling; they have the aura of grounds for an appeal. The authorities cited relate to the application I already dispensed with.

The application is not based on the ground of correcting an error on the face of the record. The application is based on an attack on the correctness of the determination I made with regard to their application. The order was a conditional stay. In making that order, I was aware of the fact that there were two things the applicant was seeking; status quo as in not being evicted or giving vacant possession to the respondent, and two, the issue of payment of Ksh 1000,000 to the respondent. I allowed the application for stay or status quo, not to be evicted on condition that the Ksh 1000 000 only was paid to the respondent by the applicants, as in my view, in the event of the appeal succeeding, the respondent was in a position to refund the same to the applicants. That was the import of the case Northwood Service Limited vs. Mac &More Solution Ltd [2015] eKLR whose reasoning I agreed with. The order was therefore not erroneous.

With regard to the application of sections 1A, 1B and 3A of the CPR, Counsel argued that it was in the interests of justice to review the order. I was of the view the applicants would not suffer any prejudice, nor their appeal be rendered nugatory, as should they would continue to occupy and run the coffee factory, and should they be successful, the respondent would be obligated to refund the Ksh 1000,000 paid to it.

In the circumstances I must find that the application is not merited. The same is dismissed with costs to the respondent.

Dated, delivered and signed at Nyeri this 25th day of May 2018

Mumbua T. Matheka

Judge

In the presence of:

In the presence of;

Court Assistant:

Counsel for Applicant:

Counsel for respondent: