[2022] KEHC 16890 (KLR)

Simba Platinum Limited v Simba Coach Limited & another; Ali (Interested Party) (Civil Suit 12 of 2019) [2022] KEHC 16890 (KLR) (16 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16890 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Suit 12 of 2019

OA Sewe, J

December 16, 2022

Between

Simba Platinum Limited

Plaintiff

and

Simba Coach Limited

1st Defendant

Simba Logistics Limited

2nd Defendant

and

Aisha Wanjiku Ali

Interested Party

Ruling

1. Before the court for determination is the notice of motion dated September 21, 2020. It was filed by the plaintiff under order 45 rule 1(a) and (b) of the Civil Procedure Rules, 2010, for orders that:(a)Spent(b)Spent(c)The court be pleased to review its ruling issued on the June 9, 2019 out of time; and thereby lift the proclamations and warrants of attachment issued in respect of motor vehicle registration No KBQ 631C.(d)In the alternative, the court be pleased to review its ruling issued on the June 9, 2019; and in substitution thereof, the intended interested party be enjoined to the suit to pave way for the full trial on priority basis.(e)The costs of the application be borne by the intended interested party.

2. The application was premised on the grounds that the court (Hon Chepkwony, J) delivered a ruling on the June 9, 2019 in which the intended interested party’s application for joinder was allowed; and that there was an apparent vital omission, hence the application for review. The plaintiff further contended that warrants of attachment had been issued and executed upon its assets, notwithstanding that it was not a party to Naivasha CMCC No 269 of 2016: Asha Wanjiku Ali v Simba Coach Limited (hereinafter, “the Naivasha case”)

3. The application was supported by the affidavit of one of the plaintiff’s directors, Mr Feroz Osman. The plaintiff thereby endeavoured to demonstrate that it is a separate and distinct entity from the 1st defendant company, in respect of which the subject warrants of attachment were issued. At paragraph 7 of its supporting affidavit, the plaintiff deposed that it acquired motor vehicle KBQ 631C from the 1st defendant prior to the issuance of the decree in the Naivasha case. Thus, it was the plaintiff’s contention that it is not liable to pay the sum decreed in the Naivasha case; and that, in any event, the decree holder/interested party had not complied with the provisions of section 38 of the Civil Procedure Act as no notice to show cause was ever issued or served on it before execution.

4. According to the plaintiff, these pertinent issues were never canvassed or addressed before the impugned ruling was delivered; and therefore they had no opportunity to make submissions in respect thereof. And, at paragraph 14 of the supporting affidavit, the plaintiff stated that it is not a dummy entity to frustrate the execution process, but a bona fide purchaser for value prior to the judgment and the decree in the Naivasha case. It therefore urged that, to meet the ends of justice, the application ought to be allowed and the impugned ruling reviewed.

5. The application was opposed by the interested party vide her replying affidavit sworn on July 22, 2021. She averred that judgment was entered in her favour in Naivasha CMCC 269 of 2016 for the sum of Kshs 3,300,647. 68 as damages and costs in respect of injuries sustained by her in a road traffic accident that occurred when she was travelling in motor vehicle KBQ 631C. Her contention was that, at all material times, the said motor vehicle belonged to the 1st defendant and was only transferred to the plaintiff after the Naivasha court delivered its judgment. Thus, according to the interested party, the transfer was done purely to scuttle the execution process.

6. At paragraphs 7 to 17 of the interested party’s affidavit, it was deposed that the instant application is an abuse of the court process as the applicant has neither complied with the requirements under order 45 rule 1(a) and (b) of the Civil Procedure Rules nor shown sufficient cause to warrant review. She therefore prayed for the dismissal of the application with costs.

7. The application was canvassed by way of written submissions, pursuant to the court’s directions dated October 26, 2021. Thus, Mr Kokul for the plaintiff relied on his written submissions filed on March 1, 2022 in which he reiterated that the plaintiff had purchased some buses from the 1st and 2nd defendants without prior disclosure that some of the buses had pending legal cases; or that some of them would be subject of attachment and sale in execution of court decrees. He added that the plaintiff has lodged numerous objection proceedings countrywide which turned out to be successful, even if costly.

8. Counsel further submitted that the orders of the court issued on June 6, 2019 were erroneous and defective, not only because the said orders were made in the absence of the parties owing to covid-19 guidelines, but also because the application was allowed in its entirety; including the alternative prayers which were contradictory to the substantive prayers. By way of example, counsel pointed out that prayer (b) that required them to deposit the decretal sum of Kshs 3,300,647. 68 contradicted prayer (c) which directed for execution and the sale of the motor vehicle KBQ 631 C by way of public auction, as well as the last prayer, pursuant to which the court directed that the motor vehicle KBQ 631C be surrendered to Okuku Agencies Auctioneers pending the hearing of the suit.

9. On material non-disclosure and misstatements made by the interested party, Mr Kokul submitted that the interested party deliberately failed to inform the court that the plaintiff was not involved in the Naivasha case and therefore not the judgment debtor in the Naivasha matter. He also urged the court to find that, in asserting that the transfer of the subject motor vehicle took place after judgment was passed in the Naivasha case, the interested party misrepresented the facts to the court. He thus concluded his submissions by urging the position that the plaintiff has made out a good case for review.

10. On her part, Ms Wairimu, counsel for the interested party, relied on her written submissions dated March 14, 2022. She proposed a single issue determination, namely, whether the plaintiff has met the threshold to warrant the review of the ruling dated May 9, 2020. In her submission, the grounds put forth by the plaintiff are not proper grounds for review. Ms Wairimu relied on order 45 rule 1 of the Civil Procedure Rules and National Bank of Kenya Ltd v Ndungu Njau to buttress her argument that the new evidence touted by the plaintiff, namely, that the plaintiff is a different entity from the 1st defendant, is information that was within the plaintiff’s knowledge and could have been produced at the hearing of the application dated October 16, 2019. Counsel further submitted that the plaintiff’s assertions that there is a mistake or error apparent on the face of the record of the court have no basis, as what it really seeks is a re-appraisal of the evidence presented before the court. In this regard, counsel relied on Republic v Public Procurement Administrative Review Board & 2others [2018] eKLR and Stephen Gathua Kimani v Nancy Wanjira Waruingi t/a Providence Auctioneers, for the proposition that such a re-appraisal is impermissible in such circumstances.

11. In the light of the foregoing, the only issue for determination is the question whether the plaintiff has made out a good case for review; granted that the 2nd prayer has been the subject of a previous application in which joinder of the interested party was allowed. I note too that in the subject application and in Mr Kokul’s written submissions, the date of the impugned ruling is given as June 9, 2019. The correct date is June 9, 2020, and I will proceed and consider the application in that context.

12. Needless to say that the court is vested with the powers to review its decisions, but only in accord with the strictures of section 80 of the Civil Procedure Act and order 45 rule 1 of the Civil Procedure Rules. Section 80 of the Civil Procedure Act provides: -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)by a decree or order from which no appeal is allowed by this Act,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.

13. Order 45 rule 1 of the Civil Procedure Rules, on the other hand 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; 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.

14. It is plain therefore that an application for review must, of necessity, be restricted to discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made; or some mistake or error apparent on the face of the record; or for any other sufficient reason. It is also a prerequisite that the application for review be made without un reasonable delay.

15. The plaintiff relied on two broad grounds. The first ground is that there is discovery of new evidence and important matter which was not within its knowledge when the ruling of June 9, 2020 was delivered. However, a perusal of the impugned ruling shows that the subject motor vehicle KBQ 631C was sold before judgment was entered in Naivasha CMCC 269 of 2016. Accordingly, the evidence in issue is not new discovered. Indeed, a perusal of the court record shows that this assertion was the response made to the application dated October 16, 2019 and was taken into account by the court in the ruling dated June 9, 2020. Thus, at paragraph 11 of the impugned ruling, the court observed that:“There seems to have been a lot of back and forth between the respondents which suggests foul play in a bid to delay justice due to the applicant herein. I however, agree with the applicant that the same may have been sold in order to defeat the legal process.

16. What is now said to be new information is in fact information that was available and was shared with the court before the ruling dated June 9, 2020 was delivered and if, as seems to be the case, the plaintiff was dissatisfied with the decision of the court, then its option was on appeal rather than review. This ground is therefore not tenable. This point was made in Pancras T Swai v Kenya Breweries Limited [2014] eKLR by the Court of Appeal thus: -“…In Francis Origo & another v Jacob Kumali Mungala (C A Civil Appeal No 149 of 2001 (unreported), the High Court dismissed an application for review because the applicants did not show that they had made discovery of new and important matter or evidence as the witness they intended to call was all along known to them and in any case, the applicants had filed appeal which was struck out before the filing of the application for review. This court stated:-“our parting shot is that an erroneous conclusion of law or evidence is not a ground for a review but may be a good ground for appeal. Once the appellants took the option of review rather than appeal they were proceeding in the wrong direction. They have now come to a dead end. As for this appeal, we are satisfied that the learned commissioner was right when he found that there was absolutely no basis for the appellant’s application for review. We have therefore no option but to dismiss this appeal with costs to the respondent.”We do not find it necessary to comment on the exercise of court’s discretion on which counsel submitted because it was not an issue and in any case the appellant had not made out a case in that regard. Although the decision reached by Lesiit, J was correct, it was however not based on the correct reasoning in that the application for review was premised on alleged error of law on the part of Njagi, J.We think Bennett J was correct in Abasi Belinda v Frederick Kangwamu and another [1963] EA 557 when he held that:““a point which may be a good ground of appeal may not be a good ground for an application for review and an erroneous view of evidence or of law is not a ground for review though it may be a good ground for appeal…”

17. The plaintiff also relied on the ground that there is an error on the face of the record. What amounts to an error on the face of the record was aptly discussed by the Court of Appeal in Muyodi v Industrial and Commercial Development Corporation &another [2006] 1 EA 243. Here is what the Court of Appeal had to say:“…In Nyamogo & Nyamogo v Kogo (2001) EA 174 this court said that an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is real distinction between a mere erroneous decision and an error apparent on the face of record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by long drawn process of reasoning or on points where there may conceivably be two opinions, can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error or wrong view is certainly no ground for a review although it may be for an appeal. This laid down principle of law is indeed applicable in the matter before us…”

18. In this regard, the plaintiff complained that the error is in the sense that the court granted both main and alternative reliefs. I have perused the ruling dated June 6, 2019. It is indeed the case that the court allowed the notice of motion dated October 16, 2019 as prayed. It is also true, that prayer (c) and (e) were sought in the alternative; and therefore a choice ought to have been made as to which reliefs were appropriate in the circumstances. Hence, in Alex Wainaina t/a John Commercial Agencies v Janson Mwangi Wanjihia [2015] eKLR and Olive Mwihaki Mugenda & another v Okiya Omtata Okoiti & 4 others [2016] eKLR the Court of Appeal affirmed that where a relief is prayed for in the alternative, a court of law has to choose whether to grant the main or alternative relief and state the reasons for doing so and that both cannot be granted in blanket form.

19. That notwithstanding, I am not convinced that the impugned ruling and the ensuing orders amount to an error on the face of the record. The plaintiff was at liberty to comply with the substantive orders without any prejudice at all. Moreover, there is no indication that the plaintiff made an attempt to comply with any of the orders and encountered any challenge in so doing; or that an approach was made to the court for clarification. It is also significant that the instant application was not filed until some three months later; a delay that the plaintiff chose not to explain or account for; making it seem like the instant application is nothing but an afterthought.

20. In the premises, there being no other sufficient reason to warrant review of the ruling dated June 9, 2020, I find no merit in the plaintiff’s application dated September 21, 2020. The same is hereby dismissed with costs.

21. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 16TH DAY OF DECEMBER, 2022. OLGA SEWEJUDGE