[2018] KEHC 4732 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL CASE NO. 343 OF 2010

SIMON CHEGE MWANGI ............................................................ PLAINTIFF

VERSUS

HERITAGE INSURANCE CO. LTD ......................................... DEFENDANT

RULING

1. The application before me is dated 30th March, 2017. It is premised on the provisions of Section 3A of the Civil Procedure Act, Order 51(1) of the Civil Procedure Rules 2010 and Article 159 (2)(d) of the Constitution. It seeks the following orders:-

(i) That this Honourable Court be pleased to revisit the Judgment of this Honourable Court (sic) rendered by Hon. M. Kasango, J., on 2nd July, 2015 and make an order for interest as prayed for in the plaint dated 22nd September, 2010 and which was not captured in the Judgment of the Learned Judge, the same to be paid at commercial rate, or court rate, as the court may deem fit on a sum of Kshs. 1,660,000/= from the date of the plaint to 23rd July, 2015 when the principal sum was received; and

(ii) That costs of the application be provided for.

2. The application is anchored on the grounds in support of it and the affidavit of the applicant, Simon Chege Mwangi sworn on 31st March, 2017. The defendant/respondent filed its grounds of opposition dated 6th April, 2017. The plaintiff/applicant filed his written submissions on 8th May, 2017. The respondent filed its submissions on 29th May, 2017.

2. Mrs. Kwaya, Learned Counsel for the applicant submitted that the only issue for determination is if interest is payable or not. She urged the court to revisit the Judgment of Kasango J., dated 2nd July, 2015 so that this court can make an order for interest. She relied on Section 3A of the Civil Procedure Act which grants courts inherent powers. She also cited the provisions of Section 99 of the Civil Procedure Act which provides that arithmetic or clerical errors or accidental slips or omissions may at any time be corrected by the court. She also urged this court to apply the provisions of Article 159(2)(d) of the Constitution.

3. Counsel argued that in the plaint dated 22nd September, 2010, the applicant had prayed for costs and interest. She submitted that the plaintiff led evidence on how he had acquired a loan to purchase motor vehicle registration No. KBF 806A for commercial purposes and that he used to make Kshs. 80,000/= per month. She further stated that the money would be used to pay the loan. She referred to pages 12 and 13 of the typed proceedings which capture the foregoing.

4. It was submitted that the plaintiff took out insurance and paid insurance premiums on time, but the claim was repudiated. The applicant’s Counsel argued that the suit was determined in favour of the plaintiff by the court granting him Kshs. 1,660,000/= being the insured value of the motor vehicle less depreciation and costs of the suit but the court was silent on the issue of interest. It was stated that the respondent declined to pay the same after demand was made by the applicant. Counsel prayed for an order for payment of interest. She cited the case of Raichand Lakamshi and Another vs Assand and Sons [1957] E.A. 82 on the inherent powers of a court to recall a Judgement. She also relied on Supermarine Handling Services Ltd. vs Kenya Revenue Authority [2010] eKLR and New Tyres Enterprises Ltd vs Kenya Alliance Insurance Co. Ltd. [1988] eKLR where courts held that where a party is deprived of his money or land, he is entitled to compensation in terms of interest from the date of such deprivation.

5. Counsel for the applicant in citing Republic vs the Attorney General Exparte Evelyne Khamasi[2016] eKLR, stated that interest was awarded from the date of filing of the suit as a result of a liquidated amount.

6. She contended that in the present case, failure on the part of the Judge to award interest was an accidental slip. She also relied on Civil Appeal No. 68 of 2014, Directline Assurance Co. Ltd vs Jeremiah Wachira Ichaura[2016] eKLR.

7. Mr. Mwamboje, Learned Counsel for the respondent relied on their grounds of opposition filed on 6th April, 2017 and argued that in the Kenyan legal regime, there is no term such as revisiting a Judgment. He submitted that Kasango J., awarded the applicant Kshs. 1,660,000/=, costs of the suit and ordered that he pays further court filing fees before extracting the order. Counsel stated that award of costs and interest are discretionary. He cited the case of David Githumbi Thande and Another vs Githunguri Dairy Farmers Cooperative Society Ltd and 9 Others [2010] eKLR, where the court was of the view that it is erroneous to grant orders when the law does not provide for such.

8. Counsel argued that the application before this court is an omnibus one which cannot be granted. He relied on the case of Odera Obar and Co. Advocates vs Aly Enterprises Limited and 3 Others [2015] eKLR.

9. Mr. Mwambonje submitted that the applicant had not asked for a review of the orders of Kasango J., under Order 45 of the Civil Procedure Rules or Section 80 of the Civil Procedure Act. In his view, the application should have been made without unreasonable delay but the present application was made 2 years after delivery of the Judgment. Counsel added that no further court filing fees had been paid.

10. He referred to the case of Maureen Cherotich Bett vs Stephen Kamiti Waganga [2012] eKLR, where the court found that an application for review filed 24 days after delivery of the Judgment was inordinate. He also relied on the case of Nancy Wanjeri and 3 Others vs Michael Mungai [2014] eKLR, and Michael Muriuki Ngubuini vs East African Building Society Ltd. [2015] eKLR. In the latter case, the court held that the long period taken before filing an application for review must be sufficiently explained.

11. In response to the submissions by the respondent’s Counsel, Mrs Kwaya stated that they had cited the provisions of Section 90 of the Civil Procedure Act. She urged the court to correct the omission made by the non-award of interest. In expounding on the case of Directline Assurance Co. Ltd. vs Jeremiah Wachira Ichaura(supra), the court held that there is no discretion that can be exercised in silence. She stated that their application was not omnibus as it was seeking one order. In Counsel’s view, any Judge sitting in the position that Kasango J., sat could make a decision in the present application. She added that there was a lot of correspondence between the parties on payment of interest. She prayed for their application to be allowed.

ANALYSIS AND DETERMINATION

The issue for determination is if this court should ‘revisit’ the Judgment in issue so as to award interest.

12. The application herein is premised on the provisions of Section 3A of the Civil Procedure Act which provides as follows:-

“Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”

13. Having read the written submissions and after hearing the highlights of the same made by the applicant's Counsel, what this court deduces by their request to this court to “revisit” the Judgment of Kasango J., delivered on 2nd July, 2015 and make an order for interest, is that the applicant is seeking a review of the said Judgment.

14. In the plaint filed on 23rd September, 2010, the plaintiff in paragraph 11(c) prayed for costs and interest. Kasango J., in her Judgment delivered on 2nd July, 2015, made the following orders:-

(i) Judgment is entered against the defendant in favour of the plaintiff for Kshs. 1,660,000/=;

(ii) The plaintiff is awarded costs of the suit; and

(iii) The plaintiff shall pay the further court filing fees before extracting the decree.

15. The respondent complied with the court orders but the applicant even at the time the present application was scheduled for hearing 5th February, 2018 had not paid further court fees. Come the 6th April, 2018 when the application came up for delivery of the ruling, the applicant had not paid the said fees. The court ordered payment of the further court fees and gave a mention date for 10th May, 2018. On that day, Mr. Kazungu Advocate who was holding brief for Mr. Njoroge Mwangi Advocate confirmed that further court filing fees had been paid. This court did confirm that Kasango J’s order for payment of further court fees had been complied with vide receipt No. 322420 issued on 20th April, 2018.

16. It is surprising that Counsel for the applicant based the application herein on the provisions of Section 3A when there are clear provisions of the law that an application of this nature can be anchored on. The applicant’s Counsel relied on the case of Raichand Lakhamshi and Another vs Assanand and Sons(supra) to show that the courts, including subordinate courts in Kenya have the same inherent power as the courts of England to recall a Judgment before it is perfected by a formal decree and order. In essence, what the said decision states is that courts in Kenya have powers to review their judgments. The applicant is of the view that failure to award interest as prayed for in the plaint was an accidental slip or omission which may at any time be corrected by the court either of its own motion or the application of the parties.

17. The applicant’s Counsel also relied on the case of Directline Assurance Co. Ltd vs Jeremiah Wachira Ichaura (supra) to fortify the position that the applicant should have been awarded interest. This court notes that in the said case, the aggrieved party did not seek review of the orders made by the Employment and Labour Relations Court but filed an appeal to the Court of Appeal to contest the award.

18. This court will regard the failure to premise the application under the relevant provisions of the law and Civil Procedure Rules as a technical shortcoming that is curable under the provisions of Article 159(2)(d) of the Constitution of Kenya and decide the application on merit.

19. Section 26(1) of the Civil Procedure Act addresses the issue of award of interest as follows:-

“Where and in so far as a decree is for the payment of money, the court may, in the decree, order interest at such rate as the court deems reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree in addition to any interest adjudged on such principal sum for any period before the institution of the suit, with further interest at such rate as the court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date of payment or other earlier date, as the court thinks fit.” (emphasis added).

20. With regard to review of court orders, Order 45 rule 1 of the Civil Procedure Rules lays the basis upon which an application for review can be made, this is when –

(i) There is a discovery of a new and important matter or evidence which, after the exercise of due diligence was not within a party's knowledge or could not be produced by a party at the time when the decree was passed or the order made;

(ii) On account of some mistake or error apparent on the face of the record; or

(iii) For any other sufficient reason the applicant desires to obtain a review of the decree or order, he may apply for review to the court which passed the decree or made the order without unreasonable delay.

21. In Nyamongo and Nyamongo Advocates vs. Kogo [2001] E.A 173 the Court of Appeal stated thus:-

“We have carefully considered the submissions made to us by the Advocates of the parties to this appeal. An error apparent on the face of 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 a real distinction between a mere erroneous decision and an error apparent on the face of the 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 was to be established by a 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 the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error apparent on the face of the record even though another view was also possible. Mere error or wrong view is certainly no ground for a review although it may be for an appeal”.(emphasis added)

22. In a matter such as this where the Judge did not award interest and bearing in mind that she had the discretion to either or not, award interest, it would be erroneous for an aggrieved party to approach this court for review. That would be akin to asking this court to sit on appeal in a Judgment that was rendered by a court of concurrent jurisdiction. The best avenue for such a litigant would be to appeal against the decision of the court that heard the case in the first instance, on the basis that interest had been prayed for in the plaint, but was not awarded. The appeal court would then resolve the issue of whether or not the Judge who heard the case exercised her discretion judiciously.

23. This court in making the decision that an appeal should have been pursued is alive to the provisions of Section 80 of the Civil Procedure Act which give a litigant who is aggrieved the leeway to pursue a review in a case where no appeal has been instituted. The provisions of Section 26(1) of the Civil Procedure Act however leave no room for doubt that the award of interest is discretionary on the court that hears a suit. Therefore in a situation where interest is not awarded, it cannot be interpreted to be as a result of an error on the face of the record which would be the subject of review.

24. In Jane Wanjiru Gitau vs Kenya Power and lighting Co. Ltd. [2006] eKLR, Ojwang J (as he then was) stated as follows with regard to the award of interest:-

“For the law relating to the grant of interest, and to the setting of effective dates thereof, is clearly stated in Sections 26 and 27 of the Civil Procedure Act (Cap 21); and the crucial element therein is that the court has a wide discretion to grant interest and to determine the effective dates of such interests. Obviously, all discretion donated by law to the court is to be exercised judicially. I see good cause in the mode for awarding the interests which are now being questioned through an application for review. But on grounds of proper procedure, grants of interest made in the exercise of discretion donated by law cannot, I would hold, be contested before the same court. This must be taken up on appeal; and the expectation must be that the appellant will then be able to satisfy the appellate court that the mode of grant of interests in question was in departure from the requirements of the law”.(emphasis added)

25. Although the above decision dealt with the issue of a request for review for interest awarded, it is applicable to the present circumstances as the applicant is seeking orders for the award of interest in a matter that was heard and determined but no interest was awarded. The bottom line is that the award of interest is a matter falling within the discretion of the court, therefore the non-award of interest should have propelled the applicant to file and pursue an appeal in the Court of Appeal to contest the issue.

26. I therefore find the application incompetent. It is hereby dismissed. Costs are awarded to the defendant/respondent.

DELIVERED, DATED and SIGNED at MOMBASA on this 26th day of July, 2018.

NJOKI MWANGI

JUDGE

In the presence of:-

No appearance for the plaintiff/applicant

Mr. Manguro holding brief for Mr. Gor for the defendant/respondent

Ms Caren Otene - Court Assistant