[2023] KEHC 24027 (KLR)

South Nyanza Sugar Co. Ltd v Ongeso (Civil Appeal 24 of 2019) [2023] KEHC 24027 (KLR) (20 October 2023) (Judgment)

Neutral citation: [2023] KEHC 24027 (KLR)

Republic of Kenya

In the High Court at Migori

Civil Appeal 24 of 2019

RPV Wendoh, J

October 20, 2023

Between

South Nyanza Sugar Co. Ltd

Appellant

and

Juliana Odira Ongeso

Respondent

(An Appeal from the Ruling and Order of Hon. R.K. Langat Principal Magistrate (PM) dated and delivered on 10/1/2019 in Rongo SRMC No. 80 of 2016)

Judgment

1. This judgment is in respect to the ruling and order of Hon. R.K. Langat (PM) dated and delivered on 10/1/2019. The appellant is challenging the ruling on the following three grounds: -1. The learned Magistrate erred in law and in failing to properly evaluate the law on Order 45 of the Civil Procedure Rules and arriving at the wrong decision.2. That the trial court erred in law and in failing to appreciate the provisions of the Constitution of Kenya 2010 and arrived at a wrong decision.3. The trial court failed to evaluate the applicant’s submissions in relation to the law.

2. The factual background giving rise to this appeal is a Notice of Motion dated 3/8/2018, filed by the appellants. In the said motion, they sought the following orders:-a.That the trial court be pleased to order for stay of execution of the judgement and decree pending the hearing and determination of this application.b.That the trial court be pleased to review its judgement delivered on 26/7/2018 by setting it aside and also dismiss the suit with the cost.c.Costs be provided for.

3. The application was supported by the grounds on its face and the affidavit of Pamela J. Namusubo, Counsel practicing in the firm of Otieno, Yogo, Ojuro & Co. Advocates. It was deposed that Judgment was entered in Rongo CMCC No 70 of 2016 on 28/5/2018 in favour of the respondent for a sum of Kshs 48, 240/= with costs and interest of the suit; that the documents relied upon by the respondent in Rongo CMCC No 70 of 2016 are the same ones as the ones relied on in Rongo CMCC No 80 of 2016; that there was an error apparent in the judgement since there is fraud on the part of the respondent for filing two suits raising from the same cause of action. The appellant asked the trial court to allow the application as prayed.

4. The application was opposed. Mr. Ouma Andrew Silver, Counsel for the respondent swore a replying affidavit dated 27/8/2018. He deposed that the contract agreement for Rongo PMCC No 70 and 80 of 2016 is distinct; that there is no error apparent on the face of the record since there are two and distinct separate plots allocated to an individual that the alleged fraud is an afterthought since the appellant did not plead the issue; that the application was brought with undue delay since the orders sought to be set aside were made on 28/5/2018 and the application was filed on 3/8/2018. It was further deposed that the appellant’s remedy lies elsewhere but not in setting aside the judgement.

5. In its ruling dated 10/1/2019, the trial court considered three issues for determination: whether there was an error apparent in the judgement of the court to warrant review; whether the application is brought without undue delay and costs of the application. The trial court considered the three principles which must be established when a party is alleging that there was an error apparent on the judgement. In dismissing the application, the trial court was of the view that since the issue was not raised by the appellant in its pleadings, that is the defence, the error cannot have been made by the court and therefore, the appellant cannot now argue that the error and omission was on the part of the court, whilst it was their fault.

6. Directions on this appeal were taken and both parties filed their respective written submissions.

7. In its submissions dated 16/12/2022, the appellant submitted on two issues: whether the suit was filed out of time and whether the respondent breached the contract. The submissions by the appellant seem to be addressing other issues other than those it raised in its grounds of appeal. The grounds of appeal mainly challenged the decision of the trial court in its ruling dated 10/1/2019. The submissions as filed are not relevant to the facts before this court and they will not be considered.

8. The respondent filed submissions dated 6/8/2022 on 4/10/2022. The respondent submitted that the suits filed in Rongo PMCC No 70 and 80 of 2016 are distinct to the extent that the details on each of the contracts are different. The respondent urged the court to dismiss the appeal with costs to the respondent.

9. I have considered the appeal, the trial court record and the submissions. The issue for determination is:-a.Whether there was a mistake on the face of the record to warrant setting aside the trial court’s ruling and order of 10/1/2019.

10. In the impunged application, dated 3/8/2018, the appellant sought to have the ruling and order of the trial court be set aside on grounds that there was an error apparent on the face of the court record. The appellant contended that the respondent filed two similar suits using the same set of facts in Rongo PMCC No 70 of 2016 and Rongo PMCC No 80 of 2016.

11. Section 80 of the Civil Procedure Act provides:-80. 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 judgement to the court, which passed the decree or made the order, and the court may make such order thereon as it thinks fit.

12. Order 45 Rule 1 of the Civil Procedure Rules makes provision for the principles to be considered in an application for review of a decree or order. The Rule provides as follows: -1. A person considering himself aggrieved-a.By a decree or order from which an appeal is allowed, but from which no appeal has been preferred; orb.By a decree or order from which no appeal is hereby allowed, and from who 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, desirous to obtain or render of the decree or order, may apply for a review of judgment to the court which passed the decree or made an order without unreasonable delay.

13. Hence, the scope for review is limited to the following grounds: -a.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;b.on account of some mistake or error apparent on the face of the record; orc.for any other sufficient reason and whatever the ground there is a requirement that the application has to be made without unreasonable delay.

14. The appellant took the position that the respondent filed similar suits in Rongo PMCC No 70 of 2016 and Rongo PMCC No 80 of 2016. I have carefully considered the pleadings in the two suits. The pleadings in Rongo PMCC No 70 of 2016 do not form part of the documents in the record of appeal. However, the court has taken the liberty to peruse the pleadings which were annexed to the appellant’s application and marked as “PN2. ” Undeniably, Juliana Odira Ongeso, the respondent herein, is the plaintiff in both suits while South Nyanza Sugar Company Limited, the appellant herein, is the defendant in both suits.

15. In Rongo PMCC No 70 of 2016, the respondent sued the appellant for damages for breach of contract. The respondent relied on the contract signed between the parties dated 18/7/2005. The respondent pleaded that the sugarcane was planted on her land being plot number 246 in K/Masia Sub - Location and she was assigned account number 263133.

16. In Rongo PMCC No 80 of 2016, this court needs to make an observation. The pleadings filed in the record of appeal are different in context from what is available in the original court file. In the pleadings which have been filed in the record of appeal, the facts of the suit are similar to the ones in Rongo PMCC No 70 of 2016 on the particulars of the date of the contract, the plot number and the account number assigned to the respondent.

17. However, the original pleadings in the trial court file for Rongo PMCC No 80 of 2016 paint a different picture. The respondent sued the appellant for damages for breach of contract. The respondent relied on the contract signed between the parties dated 18/7/2005. The respondent pleaded that the sugarcane was planted on her land being plot number 1192 in K/Masia Sub – Location, on 0. 4 Ha and she was assigned account number 263142. The plaint in the trial court file shows that it was the one which was heard and determined and the respondent paid.

18. This court is inclined to believe that the pleadings in Rongo PMCC No 70 of 2016 and Rongo PMCC No 80 of 2016 refer to two contracts and therefore have distinct set of facts. Accordingly, there was no error apparent on the face of the record, nor a mistake to warrant the trial court to set aside its judgement and decree of 26/7/2018.

19. The trial court’s ruling and order dated 10/1/2019 is hereby upheld. The appeal dated 11/1/2019 is devoid of merit and it is hereby dismissed with costs to the respondent.

DATED, DELIVERED AND SIGNED AT MIGORI THIS 20TH DAY OF OCTOBER, 2023. R. WENDOHJUDGEJudgment delivered in the presence of;No appearance for the Appellant.Mr. Bunde for the Respondent.PhelixCourt Assistants.