[2023] KEHC 23716 (KLR)

Spire Bank Limited v Wainaina & another (Civil Suit 91 of 2018) [2023] KEHC 23716 (KLR) (Commercial and Tax) (19 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23716 (KLR)

Republic of Kenya

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

Commercial and Tax

Civil Suit 91 of 2018

A Mabeya, J

October 19, 2023

Between

Spire Bank Limited

Plaintiff

and

Gladys Njeri Wainaina

1st Defendant

Simon Gathu Njogu

2nd Defendant

Ruling

1. Before me is the plaintiff’s Notice of Motion dated 17/11/2021 brought under Order 45 Rule 1 of theCivil Procedure Rules and Section 3A of the Civil Procedure Act. In it, the plaintiff sought the review of the ruling of this Court of 19/8/2021.

2. The grounds for the application were that this Court delivered a ruling on 19/8/2021 which set aside the sale by public auction of the suit motor vehicle and ordered the vehicle to be released unconditionally to the 1st defendant.

3. That the application which led to the ruling of 19/8/2021 did not seek the setting aside of the auction sale of the subject vehicle but only sought the release of the vehicle therefore the Court had granted orders that were not sought by the 1st defendant.

4. The plaintiff averred that the subject vehicle was already sold over two years ago and its location may not be known; that the 3rd party who purchased the car was a bona fide purchaser for value and acquired an indefeasible title therefore the Court’s ruling of 19/8/2021 is unenforceable.

5. The plaintiff therefore prayed that the said ruling be reviewed the subject vehicle be allowed to remain in the possession of the third party who purchased it through public auction.

6. In opposition to the subject application, the 1st defendant filed a replying affidavit sworn on 14/3/2023 by herself. She averred that all the issues raised in the application were canvassed and ruled upon in the application dated 18/3/2021. That despite the fact that there was no specific prayer seeking to set aside the auction, there was a prayer in the application that sought “any other further order that this court deems fair to grant”.

7. Further, that in the present application there is no proof that the subject vehicle was transferred to any third party and that the application is a backdoor appeal against the ruling and order sought to be set aside.

8. The issue the court must determine is whether the application meets the grounds for review.

9. The power to review an order of the court is provided by Section 80 of the Civil Procedure Act which provides that:“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.”

10. The complimentary procedural rule is Order 45 Rule 1 of the Civil Procedure Ruleswhich provides that: -1. (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 judgement to the court which passed the decree or made the order without unreasonable delay.”

11. From the foregoing, an applicant seeking to have the court review its order must demonstrate either the discovery of a new and important matter of evidence which despite exercise of due diligence was not known or could not be produced at the time the order was made; or a mistake or error apparent on the face of the record; or any other sufficient reason. At least one of the above grounds must be met before a Court can grant orders for review.

12. In the present case, the plaintiff submitted that there was an error apparent on the face of the ruling delivered on 19/8/2021 as the court set aside the alleged public auction for the sale of the subject vehicle yet such a prayer was not sought but it only sought the release of the subject vehicle.

13. I have considered the application dated 18/3/2021 which led to this court’s ruling of 19/8/2021. While it is true that the 1st defendant did not specifically pray to have the public auction set aside, she prayed for “Any other or further order that this Honourable Court deems fair and just to grant.”

14. It is the cardinal principal of law that no court of law should issue an order in vain. Having found that the alleged public auction was but an illusion or never took place at all, the Court had to issue orders that would lead to the ends of justice. Therefore, the Court did not err when it set aside the alleged public auction. There is no error apparent on the face of the ruling as alleged by the plaintiff.

15. In any event, I note that the grounds of review in the instant application are matters that were already determined in the ruling of 19/8/2021. I agree with the 1st defendant that the application is merely an attempt to appeal against the said ruling. The plaintiff has not demonstrated any of the necessary grounds for a review to be granted but has regurgitated the issues raised in its earlier application of 18/3/2021.

16. In the premises, the application dated 17/11/2021 is without merit and is dismissed with costs. The parties are hereby directed to undertake pre-trials and prepare for the trial of the main suit.It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 19TH DAY OF OCTOBER, 2023. A. MABEYA, FCI ArbJUDGE