[2023] KEHC 19591 (KLR)

Solanki v Pandya (Civil Appeal E082 of 2021) [2023] KEHC 19591 (KLR) (30 June 2023) (Ruling)

Neutral citation: [2023] KEHC 19591 (KLR)

Republic of Kenya

In the High Court at Kisumu

Civil Appeal E082 of 2021

RE Aburili, J

June 30, 2023

Between

Narendra Chaganlal Solanki

Appellant

and

Dhaneswar Monji Pandya

Respondent

(From the Judgment and decree in original Kisumu Chief Magistrate’s Court Civil Case No. 22 of 2021 delivered by Hon. W. K. Onkunya, SRM on 1st July 2021. )

Ruling

Ruling on Review of the Ruling Rendered earlier in the Day on Abatement of the Appeal 1. This morning, of June 30, 2023 this court delivered a short ruling marking this file as closed on account that the appeal had abated upon the death of the Appellant because the main claim subject of the appeal did not survive the deceased claimant as it was based on defamation.

2. This was following a short address by both counsel and indeed, the court knowing that a claim based on defamation does not survive the claimant, marked the appeal as abated and closed.

3. However, as I was perusing file after typing of the handwritten ruling, I came across the original pleadings which clearly show that the claim was for general damages for false imprisonment and malicious prosecution, not defamation. I look the word defamation from Mr Onsongo, the Respondent’s counsel.

4. Having found that the claim for damages was in respect of false imprisonment and malicious prosecution and not defamation, I am persuaded that the order for abatement of the appeal on that ground, and the closure of the file was made in error.

5. Under Section 99 of the Civil Procedure Act, this court has power to correct an error arising from accidental slip or omission either on the court’s own motion or on the application of any of the parties. In addition, this court has inherent jurisdiction to review its own orders.Thus, where a mistake has been brought to the attention of the court which mistake is capable of being remedied, be it by way of review or otherwise, the court’s discretion is not fettered in its exercise of inherent powers to so review its own orders. The Court of Appeal, in Nakumatt Holdings Limited vs Commissioner of Value Added Tax [2011] eKLR held that the Superior Court in the matter before the Court of Appeal ourt had residual power to correct its own mistakes. Further, that where a mistake is shown to have been committed which is remediable by the court the same ought to be corrected by the Court in the exercise of its inherent jurisdiction.

6. The Court of Appeal stated as follows. Inter alia:“In the appeal before us the main, if not the only issue is whether or not the superior court had jurisdiction to review its own decision given on June 6, 2003, given that Rimita J. conceded that he wrongly invoked section 33 of the Value Added Tax Act to decline jurisdiction to grant leave to apply for an order of judicial review…It was common ground that the decision of the superior court given on June 6, 2003, was erroneous to the extent that the superior court acted on the mistaken belief that section 33 of the Value Added Tax had not been amended. It is also common ground that the Law Reform Act does not have provisions for review. The point of departure is whether order 44 of the Civil Procedure Rules under which the review application was made, applies to order 53 of the same Rules…What is important is that the superior court in the matter before us had the residual power to correct its own mistake. It may be that the appellant cited a wrong provision of the law in its application for review. That per se would not deprive the court the power of correcting its own mistake which that court itself acknowledged it made.”[Emphasis added]

7. In this case, the discovery of the error arising from what I consider is an accidental slip has been made by the court which has on its own motion, recalled the order and corrected the same.

8. This is a court of record and whereas it is common knowledge that a cause of action does not survive the claimant in claims for damages for defamation of character, which is not the case here, the cause of action survives where the claim is for damages for malicious prosecution or false imprisonment.

9. I am fortified by the provisions of Section 2(1) of the Law Reform Act which provides for the causes of action which survive the death of a party. The Section provides that:“2(1)subject to the provisions of this Section, on the death of any person after the commencement of this Act, all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate;provided that this subsection shall not apply to causes of action for defamation or seduction or for inducing one’s spouse to leave or remain apart from the other or to claims for damages on the ground of adultery.”Under Section 2(2) of the said Law Reform Act:(2)where a cause of action so survives for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person:-(a)shall not include any exemplary damages.”

10. From the above section, which was not referred to by any of the parties’ counsel when the court made the inquiry whether the cause of action survived the deceased appellant, a claim for pecuniary damages including claims for false imprisonment and malicious prosecution survive for the benefit of the deceased’s claimant estate but not a claim for exemplary damages. This is so because these two causes of action are not among those specified in the proviso to Section 2(2) of the Law Reform Act. The only claim which does not survive the claimant is exemplary damages. (See Section 2(2) (a) of the Law Reform Act.)

11. For the above reasons, I hereby review the ruling and order issued this afternoon marking this file as closed on account of abatement of the appeal under the mistaken belief that the claim was for damages for defamation and I set aside that ruling and order and substitute it with an order reviving the appeal.

12. As the Appellant had filed the application for substitution of the appellant who died on June 18, 2022, which application was filed within one year as stipulated in Order 24 of the Civil Procedure Rules and as counsel for the Respondent had no objection to the substitution thereof with the deceased’s personal representative as per the limited grant issued on March 24, 2023 vide P&A No E003 of 2023; I hereby allow the application dated May 24, 2023 and order that the Appellant herein Narendra Chaganlal Solanki, who is since deceased is hereby substituted with Jiten Narendra Solanki, his personal representative for purposes of prosecuting this appeal to its logical conclusion.

13. As the trial court file is available, I hereby admit this appeal to hearing and direct that the same shall be canvassed by way of written submissions.

14. The Appellant has 14 days of today to file and serve written submissions upon the Respondent’s counsel who shall in turn file and serve written submissions within 14 days of the date of service.

15. The registry to serve this ruling and order upon the parties’ advocates forthwith.

16. Mention in the next term on September 19, 2023 to fix a Judgment date.

17. I so order.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 30TH DAY OF JUNE, 2023R. E. ABURILIJUDGE