[2022] KEHC 14883 (KLR)

Thande v Pratt (Civil Appeal E337 of 2020) [2022] KEHC 14883 (KLR) (Civ) (4 November 2022) (Ruling)

Neutral citation: [2022] KEHC 14883 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E337 of 2020

CW Meoli, J

November 4, 2022

Between

Richard Thande

Applicant

and

W Kristina Pratt

Respondent

Ruling

1. Richard Thande (hereafter the applicant) filed a motion dated January 19, 2022 and amended on February 1, 2022 seeking inter alia that the court be pleased to review its ruling of November 25, 2021 and find that indeed the applicant deposited the sum of Kshs 2,500,000/- on July 14, 2021 as security in compliance with the order of this court of June 30, 2021; and that the court be pleased to review its ruling of November 25, 2021 and find that the said sum of Kshs 2,500,000/- deposited by the applicant suffices as security for the grant stay of execution of the judgment dated November 25, 2020 in Nairobi Milimani CMCC No 8148 of 2018 pending hearing and determination of the appeal.

2. The motion is expressed to be brought under section 3A & 80 of the Civil Procedure Act (CPA) and order 45 rules 1 of the Civil Procedure Rules (CPR), inter alia. On grounds on the face of the motion as amplified in the supporting affidavit sworn by Paul Kariba Kibiku, counsel having conduct of the matter. To the effect that by this court’s ruling delivered on November 25, 2021 the court stated that the applicant had not complied with its order of June 30, 2021 requiring the applicant to deposit the sum of Kshs 2,500,000 in court within fourteen (14) days. He deposes that the foregoing failure gave the court the impression that, the applicant while keen to obtain stay orders was reluctant to offer security to Kristina Pratt (hereafter the respondent) contrary to the provisions of order 42 rule 6 of the Civil Procedure Rules. That the foregoing is an error apparent on the face of the record, as the applicant had deposited the sum of Kshs 2,500,000/- in court on July 14, 2021. That the deponent having come on record was instructed to appeal the said ruling, which the appeal has since been withdrawn.

3. The respondent opposes the motion by way of a replying affidavit views the motion as frivolous, vexatious and an abuse of the court process. She swears that the condition for temporary stay of execution issued on June 30, 2021 and the final order of November 25, 2021 were mutually exclusive as the former was to be in place pending determination of the applicant’s motion and the latter to apply pending determination of the present appeal; that the applicant has created a fallacious impression that the orders to deposit security by dint of the ruling dated November 25, 2021 was an enhancement for the initial sum ordered on June 30, 2021 on account of the applicant’s failure to comply; that the grant of stay and determination of security to be deposited are both subject to judicial discretion; that there is no evidence in the Judiciary Case Tracking System (CTS) of compliance with the order of June 30, 2021 and the applicant has failed to demonstrate timely compliance with the interim order or to establish any error apparent on the face of the record; and that the motion is brought for the purpose of delaying execution.

4. She proceeds to urge that if the court is inclined to allow the motion the same ought to not extend to the order of deposit of security. That the applicant has failed to proffer a just cause why the respondent ought to be kept out of her money. In conclusion she asserts that this court ought to exercise discretion in favour of the respondent and dismiss the instant motion with costs.

5. In a rejoinder by way of further affidavit counsel reiterates that the applicant complied with court’s order of June 30, 2021 as evidenced by the bank deposit slip dated July 14, 2021 pursuant to which the court issued an electronic receipt dated July 16, 2021. That the issuance of the receipt two days later may lie in administrative delays at the and it is not in doubt that the applicant complied with this court’s order on deposit as evidenced in the Judiciary CTS.

6. The motion was canvassed by way of written submissions. Counsel for the applicant reiterated the affidavit material to urge the court to review its order of deposit on account of the error apparent on the face of the record. Additionally, counsel called to aid the decisions in Muyodi v Industrial & Commercial Development Corporation [2020] eKLR as cited Pascal Obonyo Agwena v Simon Juma Odiyo [2020] eKLR and Seth Ambusini Panyako v IEBC & 2 others [2017] eKLR in urging the court to find the deposit of Kshs 2,500,000/- pursuant to the order of the court issued on June 30, 2021 as adequate security pending the determination of the appeal.

7. On behalf of the respondent, counsel anchored his submissions on the provisions of order 45 rule 1 of the Civil Procedure and submitted that there was no compliance with the court’s order as the electronically generated receipt relied on by the applicant indicates that the deposit was made on July 16, 2021 and this court correctly observed that the applicant had not complied with the orders of June 30, 2021 on deposit within the fourteen (14) days. Counsel cited the decision in National Bank of Kenya v Ndungu Njau [1997] eKLR to argue that the court did not make an error or mistake in indicating that the applicant had not deposited the Kshs 2,500,000/-. That proof of whether the payment was made in time ought to be determined by the date of the judiciary receipt and not the invoice as was held in Christine Mwingina Akonya v Samuel Kairu Chege [2017] eKLR. It was further submitted that part of the reliefs sought by the Applicant adverted more to an appeal rather than a review application whereas the court cannot sit on appeal on its own decision.

8. Citing the Supreme Court decision in Parliamentary Service Commission v Martin Nyaga Wambora & others [2018] eKLR on the guiding principles for review of a court decisions, counsel contended that the applicant has failed to appreciate the difference between the interim orders made on June 30, 2021 and the final order made on November 25, 2021which were separate and distinct orders issued at different stages with different purposes and hence it is absurd for the applicant to assume that the court in its final determination was bound by the terms of conditional stay granted at an interlocutory stage.

9. Counsel asserted that the court’s departure on security from its order issued on June 30, 2021 cannot be construed as a mistake or error apparent on the record, as granting of conditional stay pending appeal is a matter of judicial discretion. It was further submitted that there being no error or mistake apparent on the face of the record the applicant has equally not demonstrated any sufficient reasons for the court to exercise its discretion to review its orders and the claims that the court enhanced the conditions of the security for stay is speculative. Finally, counsel contended that the applicant has failed to explain the delay in filing the instant motion as such the applicant’s indolence is in excusable. The court was thus urged to dismiss the motion with costs.

10. The court has considered the material canvassed in respect of the motion. The applicant’s motion before this court is anchored on the provisions of order 45 (1) of the Civil Procedure Rules which provides that:-“(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 judgment to the court which passed the decree or made the order without unreasonable delay.”

11. In Jason Ondabu t/a Ondabu & Company Advocates & 2 others v Shop One Hundred Limited [2020] eKLR the Court of Appeal stated that:-“An application for review, therefore, involves exercise of judicial discretion. The circumstances in which this court, as an appellate court, can interfere with the exercise of judicial discretion are limited”.

12. There is a long line of authorities on the principles applicable to a review application brought under order 45 (1) of the Civil Procedure Rules. In the judgment of Okwengu JA in Associated Insurance Brokers v Kenindia Assurance Co Ltd [2018] eKLR the Court of Appeal stated that:“It is clear that order 45 rule 1(1) of the Civil Procedure Rules provides that a mistake or error apparent on the face of the record is one of the grounds upon which an application for review of a decree or order can be granted. In National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR, this court had this to say regarding a review arising from a mistake or error apparent on the face of the record:“A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review.” (Emphasis added)In Nyamogo and Nyamogo Advocates v Kogo [2001]1 E.A. 173 this court further explained an error apparent on the face of the record as follows:“An error apparent on the face of the record cannot be defined precisely and exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long drawn process of reasoning or on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error apparent on the face of the record even though another view was also possible. Mere error or wrong view is certainly no ground for a review although it may be for an appeal.”

13. Further, in Multichoice (Kenya) Ltd v Wananchi Group (Kenya) Limited & 2 others[2020] eKLR the Court of Appeal held that:“It bears emphasizing that the phrase "mistake or error apparent" by its very connotation conveys the fact that the error envisaged is one which is evident per se from the record and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. It is prima-facie visible. It must relate to an error of inadvertence, one which strikes one on merely looking at record. An apparent error on the face of the record has been described in the most simplified manner by the Tanzania Court of Appeal adopting with approval commentaries by Mulla, Indian Civil Procedure Code, 14th Edition pg 2335-36 as follows:“The courts in India have for many years had to consider what is constituted by "an error apparent on the face of the record" in the context of 0. 47, r 1 of the Code of Civil Procedure and we think their opinions are of immense relevance. We treat for this purpose as synonymous the expressions "manifest" and "apparent". The various opinions are conveniently brought together in Mulla, 14th ed, pp 2335-36 from which we desire to adopt the following. An error apparent on the face of the record must be such as can be seen by one who runs and reads, that is, an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on points on which there may conceivably be two opinions [State of Gujarat v Consumer Education & Research Centre [1981] AIR Guj 223]... But it is no ground for review that the judgment proceeds on an incorrect exposition of the law [Chhajju Ram v Neki (1922) 3 Lah 127]...”

14. The applicant’s review motion is premised on the ground of error or mistake apparent on the face of the record. In the ruling of this court delivered on November 25, 2021, the court observed that the applicant had not complied with its order of June 30, 2021 requiring him to deposit the sum of Kshs 2,500,000/- in court within fourteen (14) days and that it appeared that the applicant while keen to obtain stay orders was reluctant to offer security contrary to the requirements for stay in the provisions of order 42 rule 6 of the Civil Procedure Rules. The fact is that unknown to the court the applicant had deposited the sum of Kshs 2,500,000/- in court on July 14, 2021 which was receipted on July 16, 2022. That said, the latter is the date of compliance, not the former. Hence, strictly speaking, the applicant did not comply with the requirement for deposit in 14 days as he has strenuously asserted. The court had stated in its ruling that:“20. Similarly, this court must also hold the ring even-handedly in order not to prejudice any party pending the determination of the appeal. The applicant has not offered any security and justifies his stance by asserting erroneously that it is not a mandatory requirement. After the oral highlighting of submissions by parties on June 30, 2021, this court granted the applicant’s request for interim stay of execution pending this ruling. The order was subject to the condition that the applicant was to deposit into court the sum of Shs 2. 5million within 14 days. Five months later there is no evidence that the Applicant complied with that condition. The applicant’s non-compliance and his sustained but untenable stance regarding the requirement for security gives the impression that the applicant while keen to obtain stay orders is himself reluctant to offer security to the respondent. The court cannot allow the tipping of the scales in such a skewed manner.”

15. Judicial discretion though governed by established principles is not exercised in a vacuum. The court was entitled in dealing with the motion to consider all relevant facts including the disclosed disposition and conduct of the applicant in relation to security. However, it is a fallacy for the applicant to claim that the final conditions represented some sort of penalty for non-compliance; that represents a speculative, self-serving, partial and selective reading of the court’s ruling by the applicant. As correctly argued by the respondent, it is trite that the power of the court to grant stay of execution of a decree pending appeal is discretionary, however the discretion should be exercised judicially. The Court of Appeal in Butt v Rent Restriction Tribunal [1979] eKLR had this to say in respect of the foregoing; -“It is in the discretion of the court to grant or refuse a stay but what has to be judged in every case is whether there are or not particular circumstances in the case to make an order staying execution. It has been said that the court as a general rule ought to exercise its best discretion in a way so as not to prevent the appeal, if successful from being nugatory, per Brett, LJ in Wilson v Church (No 2) 12 Ch D [1879] 454 at p 459. In the same case, Cotton LJ said at p 458:“I will state my opinion that when a party is appealing, exercising his undoubted right of appeal, this court ought to see that the appeal, if successful, is not nugatory.”Megarry J, as he then was, followed Wilson (supra) in Erinford Properties Limited v Cheshire County Council [1974] 2 All ER 448 at p 454 and also held that there was no inconsistency in granting such an injunction after dismissing the motion, for the purpose of the order is to prevent the Court of Appeal’s decision being rendered nugatory should that court reverse the judge’s decision. The court will grant a stay where special circumstances of the case so require, per Lopes LJ in the Attorney General v Emerson and others 24 QBD [1889] 56 at p 59. ”

16. The court was not bound to maintain the condition for the interim stay upon determination of the motion for stay as the applicant appears to suggest. The interlocutory order on June 30, 2021 was merely meant to keep the matter in a state of equilibrium pending determination of the applicant’s motion for stay pending appeal. There may have been a failure by the court registry to place on the record the receipt showing compliance by the applicant, but I doubt that the failure qualifies as an error on the face of the record in this case where, compliance was late by two days.

17. Moreover, the court’s discussion on security dealt with the relevant principles of law, and facts, including the applicant’s espoused stance on security, (as also demonstrated by his conduct), the court observinginter aliathat: -“17. Concerning security, the court is not persuaded by the applicant’s argument that it is not a mandatory condition to granting an order of stay of execution where there is an arguable appeal. The argument runs afoul of the language of rule 6 (2) of order 42 of the Civil Procedure Rules and pronouncements of superior courts thereon as the Respondent correctly countered. This court has already observed that the requirements applicable to motions brought under order 42 rule 6 of the Civil Procedure Rules differ from those applicable under rule 5 (2) (b) of the Court of Appeal Rules.18. Applications for stay of execution pending appeal from the subordinate court to this court are premised on order 42 rule 6 which prescribes three requirements, including furnishing of security, to be met by the successful applicant. As stated in the Shell case, if it is shown that execution or enforcement would render a proposed appeal nugatory, then a stay can properly be given, but parallel with that is the equally important consideration that a successful litigant, should not be deprived of the fruits of a judgment in his favour without just cause. The applicant’s undoubted right of appeal must be balanced against the respondent’s rights to the fruits of her judgment.” (Emphasis added)

18. The above notwithstanding and given that the applicant had already deposited the sum ordered on June 30, 2021, albeit late, the court will in exercise of its discretion and in the interest of justice vary its condition for stay of execution pending appeal. Thus, the sum to be deposited as security by the applicant as condition for stay is hereby reviewed downwards to the sum of Kes 3000,000/- (three million) including the sum of Kes 2,500,00/- already deposited in court. The applicant shall deposit the balance of Kes 500,000/- (five hundred thousand) into court by close of business on November 18, 2022 and will bear the costs of this application in any event.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 4TH DAY OF NOVEMBER 2022C.MEOLIJUDGEIn the presence of:For the Applicant: Mr. KibikuFor the Respondent: Mr. MwereroC/A: Carol