[2000] KECA 18 (KLR)

REPUBLIC OF KENYA

IN THE COURT OF APPEAL OF KENYA

AT KISUMU

CIVIL APPEAL 78 OF 1998

1. TOURING CARS LIMITED

2. CITY MERCHANTS (K) LIMITED.............................. APPELLANTS

AND

ASHOK KUMAR MANKANJI........................................ RESPONDENT

(Appeal from a Ruling of the High Court of Kenya atKisumu (Justice Wambilyanga)

dated 3rd day of July, 1997 In H.C.C.C. NO. 23 OF 1997)

JUDGMENT OF THE COURT

This is an appeal against the ruling of Wambilyanga J. givenon 3rd July, 1997, whereby, he reviewed his judgment of 30th May, 1997, in High Court Civil Case No. 23 of 1997, in which, afterhearing evidence on oath, he dismissed the respondent's suit for apermanent injunction restraining the appellant from disposing of orretaining a motor car registration number KAG 270P which therespondent claimed as belonging to him.

The learned judge in this judgment had already and categorically concluded that:

"In the disclosed circumstances of the case Iam constrained to accept the defendant'sversion to the effect that the plaintiff didnot give any consideration for the suitvehicle. He only acquired possession of itunder most dubious circumstances. His cases therefore proceed (sic) on a patently falseand untenable premises. I am unable to findin his favour. I accordingly dismiss it withcosts.".

On 4th June, 1997, the respondent applied to the learned judge to review his judgment which was stated in the related Chamber Summons as having been dated "23rd day of May, 1997" and not 30th May, 1997, which made the application defective. This defect was still maintained in the supporting affidavit of 4th June, 1997, sworn to by the respondent's advocate, Mr. Kahi, wherein, after setting out the facts upon which he was relying to support the application, deponed as follows:-

"THAT The Plaintiff will suffer doublepayments and loss if the order of thisHonourable Court made in this matter on the23rd day of May, 1997 is not reviewed..."

The facts that Mr. Kahi deponed to in summary, are that in a suit filed by the respondent against Check-In-Motors Ltd (High Court Civil Suit No. 147 of 1996), on 21st May, 1996, some ten months before the High Court Civil Suit No. 23 of 1997, was filed, the respondent, had, having failed in High Court Civil Suit No. 147 of 1996, to obtain an injunction against the defendant therein, Check-In-Motors Ltd, from selling the said motor car, KAG 270P, paid not to Check-In-Motors Ltd but to the Registrar of the High Court, the sum of 900,000/= being what he still owed them on the sale of the car to him. The order dismissing the respondents' application for injunction which was made by the High Court on 4th June, 1996, and which is worth setting out, is as follows:-

"IT IS HEREBY ORDERED:

I do not understand the Plaintiff's case. Heshould simply pay the Defendant what he owesthe Defendant. He cannot retain the Motor Vehicle and at the same time not complete thepurchase of the same.

I find the application frivolous and I dismissit.

By consent letter ref:1081/HCC/147/96 dated3rd June, 1996 signed by R. K. Somaia Advocatefor the Plaintiff and Olago Aluoch Advocatefor the Defendant the Temporary stay begranted in terms of application dated 20thMay, 1996 pending inter-parte hearing.".

Without mentioning that there had been no inter partes hearing of the Chamber Summons up to today, Mr. Kahi continued in his affidavit in support of the application for review, that the respondent paid the 900,000/= by way of a cheque, we think rather mischievously, not to Check-In-Motors Ltd as directed by the High Court, but rather to the High Court Registry on 8th April, 1997, some ten months after the order had been made, and most significantly, only after the respondent had filed his suit against the appellant in High Court Civil Suit No. 23 of 1997, in January, 1997, which is different from High Court Civil Suit No. 147 of 1996. Mr. Kahi then went on in the concluding paragraph of his affidavit which summarized the grounds on which the review application was based, and we are constrained to observe, to blatantly mislead in the following manner:

"THAT in view of the above it is clear thatalthough the Court in subsequent pleadings wasasked to look at the pleadings of Kisumu HCCCC (sic) No. 147 of 1996 and more particularlythe affidavit of Mr. J.S. Bhamra and thedefence it is clear that the court did not doso thus amounting a mistake on the face of therecord before it.".

An examination of the pleadings filed in High Court Civil Suit No. 23 of 1997 clearly establishes that no such request was made.

This uncandidness by itself renders the application for review most undeserving. Mr. Kahi's false assertion can only be a spurious attempt to divert attention from the more obvious but in the circumstances, unsupportable contention that the application for review could not have been successfully founded on the discovery of new and important evidence which as required by Order 44 r. 1(1) of the Civil Procedure Rules, could not be said to be one which, after the exercise of due diligence, was not within the knowledge of the respondent. In his submissions in the review proceedings, Mr. Kahi did not press his assertion in his affidavit that there had been a mistake on the face of the record. However, in his reply to the submissions made by counsel for the appellant in the review proceedings, Mr. Kahi urged the following:-

"Under Order 44 Rule 1. We have shown a newand important matter. The omission to callthis evidence is excusable ...."

Here he was now clearly relying on the grounds of the discovery of new and important matter or evidence which had not even been pleaded.

The learned judge then in his ruling on the review application failed to consider what had been propounded in Mr. Kahi's supporting affidavit as the basis of the review application namely, that there was a mistake on the face of the record of the trial of the High Court Civil Suit No. 23 of 1997, but rather the issue of new and important evidence which did not form the basis of the application before him. In this regard, he observed that:

"In the light of all these new and importantmaterial evidence, I find and hold that thereis sufficient cause why I should review myjudgment."

And without considering at all, whether the new and important material evidence which, as required by Order 44 r. 1(1), was one which after the exercise of due diligence, was not within the knowledge of the respondent or could not be produced by him at the hearing of the High Court Civil Suit No. 23 of 1997, the learned judge went on to hold apparently, this time, "for any other reason" as follows:

"Now I hold that the evidence of Mr. Mitesh (DW2) which I relied on to arrive at theconclusion in that judgment must have beendoctored. It was false evidence. I amsatisfied that Order XLIV Rule 1 of the CivilProcedure Rules entitles me to review thejudgment so as to avoid injustice and hardshipbeing caused to an innocent party."

It would have been a different matter if the respondent had applied for the review on such grounds. Order 44 r. 1(1) provides three headings under which a review may be applied for namely:

"Any person considering himself aggrieved ...and who from discovery of new and importantmatter or evidence ... or on account of somemistake or error apparent on the face of therecord, or for any other sufficient reason,desires to obtain a review ... may apply for areview ..."

The respondent's application for review before the learned judge was based only on account of some mistake or error on the face of the record and nothing else, and having failed to establish this, the matter should have ended there. It is not for the learned judge to go beyond the ambit of the application as was before him. But this he did by exploring matters which were notwithin the ambit of that application and even as he did so, andhaving concluded, that new and important material evidence had beenproduced, he did not go on as he should have, to have considered whether this evidence could not have been discovered by therespondent after the exercise of due diligence. What is alsofurther disturbing is that after the hearing of the reviewapplication which was based on affidavits, the learned judge heldthat this type of evidence rendered the oral evidence on oath ofMr. Mitesh which was given during the hearing of High Court CivilSuit No. 23 of 1997, false.

However, since the learned judge found that there were new andimportant material evidence, that is if his exploration can becondoned, he had under this special and distinct heading toconsider only whether the evidence could have been discovered afterthe exercise of due diligence or not, and not to convert as he did, the consideration of this issue which in the first place, had notbeen pleaded, into one under the heading of "for any other reason"which had also not been pleaded.

It does not therefore come as a surprise that the appellant appealed against the ruling of the learned judge. Among the grounds of appeal are the following relevant ones:

"1. THAT the learned judge misdirected himselfand erred in preferring affidavit evidence tothe direct evidence of the appellant’s witnesses.

2. THAT on a proper reading of his ruling itis apparent that the learned Judge erred inthat he did not apply the principles to be applied on an application for review."

The feeble response by Mr. Odunga, counsel for the respondent,was in summary that the learned judge was right in holding thatthere was new and important evidence which made his previous judgment untenable. This of course, the learned judge can dofirstly, if the review is sought which was not the case, on thegrounds that there was new and important material evidence and secondly, and this in the given circumstances of the matter beforehim, cannot by the widest stretch of the imagination be true, thatthe respondent could not with due diligence, have discovered thisnew and important material evidence during the hearing of HighCourt Civil Suit No. 23 of 1997 which the respondent himself, hadsubsequently filed after instituting High Court Civil Suit No. 147of 1996.

For all the reasons set out above the appeal must succeed andthe ruling of the learned judge given on 3rd July, 1997, is herebyset aside and the respondent's application for review dated 4thJune, 1997 is hereby dismissed. The judgment of the learned judgedelivered on 30th May, 1997 is hereby restored. The appellant willhave the costs of this appeal. It is so ordered.

Rather surprisingly, the respondent filed a cross appeal inwhich he sought the variation and the reversal of the ruling of thelearned judge on the following grounds; that the learned judgefailed to assess and award the respondent any damages for trespass, that he failed to award the respondent costs, and that he erred infinding that the appellant was entitled to 900,000/= when that had not been claimed.

Mr. Odunga abandoned the first ground of the cross appeal. Heargued that on the second ground, the respondent was, upon thesuccessful review, entitled to costs; and on the third ground, thatthe appellant had not counter claimed for the 900,000/= that wasawarded to it. In the particular circumstances of the reviewapplication, we do not see anything wrong with the learned judge'sorder that the parties should each bear their own costs. Anyway, the appeal having succeeded for the reasons that we have alreadyset out, we would, if the respondent had been awarded costs on thesuccessful review, have reversed that order. As regards the awardof 900,000/= to the appellant, this was not claimed by theappellant and should not have been awarded (See Abdul Rehman v R. H. Gudka [1957] E. A. 4). This was done presumably because thelearned judge felt that if the respondent was to get possession ofthe car, the alleged outstanding purchase price of 900,000/= shouldbe paid to the appellant even though its case was not based on thesale of the car to the respondent, but on the unlawful possessionof stolen property. The cross appeal succeeds on this issue.However, having regard to the fact that we have set aside theruling and that it was the respondent's counsel who had introducedthis issue of the payment of the alleged outstanding purchase priceby the respondent in his review application submissions, there willbe no costs for the respondent.

It is so ordered.

Dated and delivered at Nairobi this 11th day of February, 2000.

A. M. AKIWUMI

JUDGE OF APPEAL

P. K. TUNOI

JUDGE OF APPEAL

E. O'KUBASU

JUDGE OF APPEAL

I certify that this isa true copy of the original.

DEPUTY REGISTRAR.