[2022] KEHC 16580 (KLR)

Spire Bank Limited v Thrift Estates Limited & 3 others (Civil Case 198 of 2019) [2022] KEHC 16580 (KLR) (Commercial and Tax) (8 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16580 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Civil Case 198 of 2019

WA Okwany, J

December 8, 2022

Between

Spire Bank Limited

Plaintiff

and

Thrift Estates Limited

1st Defendant

Daniel Kamita Gichuhi

2nd Defendant

Gichuhi Kamita

3rd Defendant

Dakagi Holdings Limited

4th Defendant

Ruling

1. This ruling determines the application dated October 4, 2021 wherein the plaintiff/applicant seeks the following orders:-1. That this honorable court be pleased to review the ruling/ order delivered on July 1, 2021 and all consequential orders arising therefrom.2. That the costs of this application be provided for.

2. The application is supported by the affidavit sworn by Plaintiff’s Senior Legal Officer Mr John Wageche and is based on the following grounds:-i.The court in delivering its ruling on consolidation of the suit herein with HCCC 576 of 2014 found that HCCC 576 OF 2014 was in relation to the sale of the property known as LR No 14902/70 (IR No 89871) while suit herein is for the recovery of the amount realized on the sale of the same property;ii.The suit herein is a liquidated claim for the residue balance after the sale of IR No 14902/70 (IR No 89871);iii.The suit HCC 576 of 2014 sought for injunctive orders against the Plaintiff over I-R No 14902/70 (IR No 89871) which property has been sold and transferred to a third party;iv.There is a mistake or error apparent on the face of the ruling.v.For any other sufficient reasons and in the interests of justice, the said ruling and/or order ought to be reviewed and/or varied.vi.The application has been brought without undue delay.

3. The 2nd defendant opposed the application through the replying affidavit dated October 7, 2021 wherein he states that the cause of action in the two suits is the same as they arise out of a loan of Kshs 31,000,000 advanced to the 1st respondent and guaranteed by the 2nd and 3rd respondents. He avers that after the sale of the suit property, the applicant realized the sum of Kshs 42,084,864. 96 and had filed the present suit claiming a further 46,084,864. 96 on the same loan account number.

4. The application was canvassed by written submissions which I have considered. The main issue for determination is whether the application meets the threshold for the granting of orders for review. Order 45(1) of the Civil Procedure Rulesstipulates as follows:-

“Any person considering himself aggrieveda)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 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 review of judgment to the court which passed the decree or made the order without unreasonable delay”. 5. The applicant’s case is premised on the claim that there is an error apparent on the face of record in respect to the orders issued on July 1, 2021. According to the applicant the suit was for the residue balance and not for the amount realized from the sale. The applicant also faults the court for consolidating the present suit with HCCC 576 of 2014 while arguing that the prayers sought therein had been overtaken by events and would cause great injustice to the applicant.

6. n Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya[2019] eKLR, the court held as follows:-“Review is impermissible without a glaring omission, evident mistake or similar ominous error. An error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by an order or review…The term "mistake or error apparent" by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of order 45 rule 1 of theCivil Procedure Rules and section 80 of the Act. To put it differently an order, decision, or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the court/tribunal on a point of fact or law. In any case, while exercising the power of review, the court/tribunal concerned cannot sit in appeal over its judgment/decision.”

7. I have perused the ruling dated July 1, 2021 and this court held that:-“11. A perusal of the pleadings filed herein reveals that the prayers sought in HCC 576 Of 2014 relate to the sale of the property known as LR No 14902/70(IR NO 89871) while HCC 198 Of 2019 the prayers sought are for recovery of the amount realized from the sale of the same property.”

8. From the ruling, it is clear that the court omitted the word not in its ruling and I find that the error is typographical and does not alter the decision of the court.

9. The applicant further challenges the court’s decision to consolidate the two suits. With regard to consolidation, it is my finding that the court pronounced itself on that issue and any interference would amount to sitting as an appellate court over the said decision. The applicant appears to be challenging the merits of this court’s decision over the issue of consolidation and I find that the same does not fall within the purview of order 45 rule 1 of the Civil Procedure Rules.

10. Having regard to the findings and observations that I have made in this ruling, I find that the application is merited and succeeds only with respect to paragraph 11 of the ruling where the court inserts the word not between the words amount and realized to read;-

11. A perusal of the pleadings filed herein reveals that the prayers sought in HCC 576 of 2014 relate to the sale of the property known as LRNo 14902/70(IR No 89871) while HCC 198 of 2019 the prayers sought are for recovery of the amount not realized from the sale of the same property.”

12. I make no orders as to costs.

13. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 8TH DAY OF DECEMBER 2022. W. A. OKWANYJUDGEIn the presence of: -Ms Aradi for Eredi for defendants.Ms Kamau for Karani for plaintiff.Mr. Awino for 2nd defendantCourt Assistant- Sylvia