[2022] KEHC 2264 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT GARSEN

CIVIL APPEAL NO. 10 OF 2021

(Being an Appeal against the Judgement of the Honourable M.Maina, Principal Magistrate delivered on 25th July, 2020 in Lamu PMCC No. 16 of 2019)

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SULTAN OMAR HUDHEFA...........................................................APPELLANT

VERSUS

BRIAN MUTHII WARUIALIAS BRIAN MUTHIE...............RESPONDENT

R U L I N G

Before court for determination is a Notice of Motion dated 18th October 2021 brought under section 1A, 1B, 3, 3A, 66 and 95 of the Civil Procedure Act, and Order 22 rule 22, Order 45 rule 1, Order 50 rule 6, and Order 51 rule 1, 10 (1) and (2) of the Civil Procedure Rules. The Appellant/applicant seeks the following orders:

1. Spent

2. Spent

3. That this Honorable Court be pleased to review, vary, extend and/or enlarge time for a further thirty (30) for compliance with the court order of 6th August 2021 requiring the Applicants to deposit part of the decretal sum in a joint earning interest account of both advocates within 30 days.

4. That due to the economic slump occasioned by the covid-19 pandemic Honorable Court be pleased to order and direct the applicants to deposit in court a specific bank guarantee in favour of the respondent for the said sum of Kshs. 350,000 within time to be prescribed by this court, the applicant having paid a sum of Kshs 250,000 to the Respondent as ordered by the court on the 6th August 2021.

5. That this Honorable Court be pleased to issue any other order it may deem just and appropriate.

6. That this application be heard inter parties on such a date and time as this Honorable court may direct.

7. That costs be provided for.

The application is premised on the grounds on the face of it and the supporting affidavit of Nyabero Bokoo Brasiny, counsel for the applicant. Briefly, counsel deposed that following this court’s orders issued on 6th August 2021, part of the decretal sum being Kshs. 350,000/- was to be deposited in a joint interest earning account and the reminder Kshs. 250,000 be released to the Respondent within a period of 30 days. The Applicant through Directline Assurance, deposited in this court a sum of Kshs.200, 000/- on 6th September 2021.

Counsel added that due to the delay occasioned by the court’s registry, the Applicant has been unable to obtain the typed proceedings for purposes of filing the record of appeal in time. The Applicant has made the application without unreasonable delay and in good faith and that the same will not occasion any prejudice on the part of the Respondent.

The Respondent opposed the application through the Replying Affidavit sworn by Geoffrey Kilonzo, counsel for the Respondent, on 25th November 2021, who deposed that the present application is res- judicata and devoid of merit.

The application was canvassed by way of written submissions.

The Applicant’s Submissions

The Applicant called upon this court to be guided by the cases of Kenya Power & Lighting Company Limited v Rose Anyango & another [2020] eKLRwhere court took judicial notice of the Covid 19 pandemic andin Kamlesh Mansukhalal Damki Patni v DPP & 3 others [2015] eKLR where the court was of the view that a court should be hesitant at closing the door to justice prior to a litigant being heard.

Further citing Order 42 rule 6 and the case of Rhoda Mukuma v John Abuoga,the Applicant submitted that the 4 conditions to warrant stay of execution have been met.

The Respondent’s Submissions

The Respondent submitted that the decision whether or not to extend time for appealing is discretionary as it was held in Thuita Mwangi v Kenya Airways Limited [2003] eKLR. According to the Respondent, no explanation for the 1-month delay in filing the present application has been given by the Applicant and that the Applicant is keen on wasting judicial time. Failure to give such explanation, the Applicant argued that this court should not exercise its discretion in the Applicant’s favour.

The Respondent further submitted that Article 159 of the Constitution of Kenya guarantees administration of justice without undue delay. This was supported by the case of Dickson Miriti Kamonde v Kenya Commercial Bank Limited [2006] eKLR where the court held that the delay cannot be excused and an indolent party must reckon with consequences of inaction.

The Respondent added that the Applicant has neither met the grounds for review as was espoused in the case of Benjoh Amalgamated Limited & another v Kenya Commercial Bank Limited [2014] eKLR.

Analysis and Determination

The Applicant wants this court to order and direct him to deposit in court a specific bank guarantee in favour of the respondent for the sum of Kshs. 350,000/- in place of depositing the same in a joint interest earning account as directed by this court on 6th August 2021.

I have carefully perused the Applicant’s previous application dated 21st July 2021 and the impugned ruling herein. I note that the above issue was expressly denied by this court. While the Applicant is well within his rights to apply for a review, he has not raised a good ground for review. I say so because in an application for review an applicant has to show that there has been discovery of new and important matter or evidence which after due diligence, was not within his knowledge or could not be availed at that time or he must show that there is some mistake or error apparent on the face of the record or that there was any other sufficient reason. And most importantly, the applicant must make the application for review without unreasonable delay.

Order 45 rule 1 Civil Procedure Rules provides as follows:

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 of 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 the judgment to the Court which passed the decree or made the order without unreasonable delay.

The applicant in this case did not demonstrate that there was discovery of new and important matter or evidence or that there was an error apparent on the face of the record. The other reason advanced by the Applicant is Covid-19, which in my view does not amount to sufficient reason to warrant this court to exercise its discretion in his favour. Covid-19 was in existence long before the impugned ruling and judgment were delivered. The Applicant did not raise this issue then. I agree with the Respondent that the present application lacks merit and is an abuse of the Court process.

The net result is that the application dated 18th October 2021 is not merited and is dismissed with costs to the Respondent.

RULING READ, SIGNED AND DELIVERED VIRTUALLY AT MALINDI THIS 14TH DAY OF FEBRUARY, 2022.

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S.M. GITHINJI

JUDGE

In the presence of; -

1. Mr Kilonzo for the Respondent/Plaintiff

2. Mr Nyambero for the Applicant/Defendant